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If you are married, separating and you have children, it is possible – and indeed likely – that one or both of you will wish to pursue a divorce through the Family Court. You may even want to reach a Financial Settlement through the Courts – whether by making an application, or submitting a pre-agreed ‘Consent Order’. The arrangements for your children, however, are perhaps less likely to have been dealt with formally by a Court.
Where the breakdown of your relationship was amicable, this can work seamlessly. However, as we often see at Emmersons, if there is residual bitterness between separating parents, things can become very turbulent for the children involved. When the adults who share Parental Responsibility for a child no longer get along, it can be very easy for children to become caught in the crossﬁre. Or to be treated like pieces of property – pulled this way and that by adults whose animosity towards each other has made them lose sight of what is truly important.
It is something of a myth that the concept of Parental Responsibility gives you as a parent a strict right to spend a ﬁxed amount of time with your children. Or to vary the arrangements for your child without consideration for how this will affect them; the law in this area is in fact far more child-centred, and the focus is very much on the duties and responsibilities of you as a parent to the child, rather than the rights of a parent over the child.
If you are the ‘primary carer’ for your children after the breakdown of the relationship. i.e. they live with you, and you provide their day-to-day care. You might encounter a number of difﬁculties: your ex-partner might remove the children from school without your knowledge or agreement. They might take the children to spend time with them, and later refuse to return them to you; or, they might aggressively demand that you allow them to spend increasing amounts of time with the children, asserting their ‘joint parental rights’, or something similar.
The difﬁculty in situations such as these is that you may feel that you have nowhere to turn. As upsetting as the ordeal may be for you and your children, their school, Social Services, and even the Police may be unable to intervene in what is essentially a private matter between adults with parental responsibility. But that’s not to say that you are powerless to act where the arrangements for your children spending time with your ex-partner have become fraught. In circumstances such as these, you could consider making an application to the Family Court for a Child Arrangements Order.
Child Arrangements Orders, made by the Family Courts, cover the arrangements for who a child will live with, who they will spend time with, and for how long. Once such an order is made, a party who breaches its terms could be ﬁned, made to undertake unpaid work, or, in an extreme case, found guilty of contempt of Court and committed to prison. These orders can, therefore, provide some much-needed certainty for you and your children.
When considering applications of this nature, the Court’s main priority is the welfare of the children involved, and Judges will consider: how capable are each of the children’s parents of meeting their physical, emotional and educational needs? What are the wishes and feelings of the children? And, what is the likely effect on the children of a change in their circumstances?
The Judges hearing Child Arrangements Order applications adhere to what is called the ‘no order principle’, which essentially means that they will not make an order unless there is some tangible beneﬁt to the children involved. An application made simply to put the status quo on a more formal footing is therefore unlikely to succeed; however, if you are worried that the arrangements for your child have become so tense as to be upsetting to your child, you should consider seeking specialist advice.
Clearly applying to the Courts is not something to be taken lightly, and you may feel you need advice as to your other options before deciding how best to proceed. Our family team will endeavour to deal with your enquiries with sensitivity, and will always attempt to resolve things in the most amicable way possible. Many of our clients have found that simply obtaining advice as to their options empowers them to address dif-ﬁculties as they arise, and we are often able to ﬁnd effective solutions to our clients’ problems without the need to resort to the Court.
Author: Jacqueline Emmerson