Family Law Blog

Child arrangements on separation – Shared Care

24 May 2017, by Taylor King Family Law Solicitors

When parents separate, whether after marriage or cohabitation, it is always best to keep things as amicable as possible.   The court encourages this approach and takes the view that unless it is unsafe to do so then it is best for children to spend time with each of their parents. This does not have to mean an equal division of time, which often does not meet a child’s needs, but can mean any manner of divisions, varying from weekends to 50/50 arrangements.

In England and Wales under current law, where the parents can agree arrangements, the Court will generally not interfere as the view taken by them is that parents are the best people to decide what is in their children’s best interests.  The Court will only make an Order in relation to the children’s care if it is satisfied doing so would be better for the children than making no order at all.

It has often been mistaken in the past that when families separate the children always remain with their mother.  This is not the case and if parties are unable to agree matters amicably, the court’s paramount concern will be the children’s welfare and what is in their best interests.  This might mean the children living with their father and the court can consider a variety of options, including sharing the residence of the children.

Sharing the care of the children means that the children alternate their periods of residence between two or more homes.   Whether this works in practice will depend on the individual circumstances but it can be an attractive option to parties where it might not be appropriate or best for the children to reside only with one parent.  The effect of sharing care under a court order will also put the parents on an equal footing.  Shared care does not have to equate to equal time spent in each home but the time should be significant.  The court will be reluctant to make such orders if the arrangements are more akin to living in one home and, for example, children spending time with the non-resident parent once a week.

Where possible, we aim to resolve family disputes, particularly those involving children, in an amicable way, and consider alternatives to litigation in the first instance.  We recognise that following a separation, emotions can be high.  Where children are involved, however, relationships need to be maintained to allow for communications between the parents long after any proceedings have concluded.  As a result, we consider with our clients whether their case is suitable for mediation, we encourage parents to attend family mediation. At mediation they can come to a decision about the suitable arrangements for their children. If court proceedings are issued, then a judge will take that decision.

Unless there are issues of domestic violence, the parents are required to attend family mediation and an application for a child arrangement order can only be applied for after the mediator has confirmed that it is not a suitable case for mediation.

If there have been problems in the past with regard to the breakdown of arrangements for the children and the parents having reached an agreement want it incorporated into an order, the court has jurisdiction to make a consent order.

The court can make a shared care order in circumstances where the children spend considerably more time with one parent than the other. In essence, the parents are accepting a joint commitment to their children.

If you are experiencing problems with the arrangements for your children, or would just like to find out more information about the issues raised above, please contact   Nicola Dunkerley. Please call 0161 883 0460 or email  for further information.

Separate representation of children in contact proceedings – The Child’s Guardian

24 April 2017, by Taylor King Family Law Solicitors

In certain circumstances, in private law children act proceedings the court decides that the children should be made a party to the proceedings and separately represented.

The court appoints a guardian for the children to represent and safeguard their interests.

This can happen e.g. when the animosity between the parents is such that they fail to take into account the interests of the children.  A guardian can also be appointed if there are allegations of physical or sexual abuse by one parent.

The children’s guardian is a qualified social worker, trained and experienced in dealing with children and families. The children’s guardian is independent and normally works for Cafcass. They are to assist the court in achieving the best possible outcome for the children.

The duties of the guardian are;

  1. To appoint a solicitor for the child
  2. To advise the court with regard to the progress of the proceedings
  3. Write a report with their recommendations about what is in the best interests of the children, which will include their wishes and feelings.


The recommendations of the guardian may be in conflict with the wishes if the child, in those circumstances the child’s solicitor will out forward to the court the views of the child and the guardian will present their own conclusions.

If you are experiencing problems with the arrangements for your children, or would just like to find out more information about the issues raised above, please contact   Nicola Dunkerley. Please call 0161 883 0460 or email  for further information.


Who or what is Cafcass?

23 March 2017, by Taylor King Family Law Solicitors

CAFCASS stands for the Children and Family Court Advisory and Support Service. It is separate from the court service and provides expertise to the court when required.

When an application is made to the court for a child arrangement or other order in respect of a child or children, CAFCASS will initially undertake safeguarding checks on the parents with social services and the police. These enquiries are to ascertain whether or not the parents have criminal convictions, are on the sex offenders list, there are issues of domestic violence and any involvement of social services in the lives of the children. CAFCASS will speak to the parents over the telephone to determine the reason for the application and write a short report.

At the first hearing called a FDHRA, a CAFCASS officer will meet both parents at court to discuss the case and make recommendations to the court. If issues arise which affect the welfare of the child/children, the court can order CAFCASS to create a report.

The recommendations of CAFCASS will have a significant influence on the eventual outcome of the case. Parents often accept the recommendations in the report.

The CAFCASS officer is appointed by the court. Parents are often unhappy about the conclusions in the report. It is not possible to change the appointed CAFCASS officer, however, if a parent has serious concerns then they can make a complaint against the officer using the CAFCASS complaints procedure.

In a limited number of cases, after concerns have been raised, either CAFCASS or the court will appoint a new CAFCASS officer.

The court is under no obligation to follow the recommendations of the CAFCASS officer in their report. It is a matter of judicial discretion. The overriding consideration is what is in the best interests of the child/children.

A parent can ask the court to order the author of the CAFCASS report to attend to give evidence. At the hearing, the CAFCASS officer will be cross-examined. If the cross-examination raises concerns about short comings in the report, the court may be influenced to go against the proposals of the CAFCASS officer.

We acted in behalf of a father seeking contact with his son. The original recommendation of the CAFCASS officer was that he should not have direct contact with the child. This recommendation had been made on the basis of allegations made by the mother against the father which were totally unfounded.  This was later confirmed after a fact-finding hearing. The CAFCASS officer was removed from the case.

If you are experiencing problems with the arrangements for your children, or would just like to find out more information about the issues raised above, please contact   Nicola Dunkerley. Please call 0161 883 0460 or email  for further information.

Parent Plan

19 March 2016, by Taylor King Family Law Solicitors

Parent Plan, a secure website that helps separated and divorced parents to communicate with one another in order to make arrangements for their children, has recently been launched. It aims to enable parents to communicate effectively and keep up to date with their children’s lives even if they do not see them every day.

Members have access to a calendar on which they can upload diary events and activities. They can also store contact details, and upload pictures and documents such as school reports or drawings. This information can be shared with the other parent and other selected adults involved in the child’s life such as grandparents or carers.

Parent Plan is free for everyone until 1st June 2016.

To access the site click here [].

The presumption of parental involvement

18 November 2014, by Taylor King Family Law Solicitors

Section 11 of the Child and Families Act 2014 came into force on 22nd October 2014. It provides that when the court makes a child arrangements order there is a presumption (unless the contrary is shown) that the involvement of both parties in the life of their children will be in the best interests of the child. This has been referred to as the presumption of parental involvement. This is important because the presumption recognises that both parents have a significant role to play in the upbringing of their children irrespective of where the child resides or how much time he or she spends with the non resident parent.

However, the presumption does not mean that the court will assume that it is in the child’s best interests to spend equal time with their parents.

English courts are now specifically directed to take into account the presumption of parental involvement when making decisions about where children live and how often they see their parents. “Involvement” is defined as direct or indirect (video calls, email, telephone) but not any particular division of a child’s time.

The welfare of the child is the paramount concern when the court makes a decision about children and this will not be overridden by the presumption of parental involvement.

The presumption is not likely to have much impact on the decisions made by the Family Court who have taken the approach for many years that the best interests of the children are met by both parents having an impact in their lives. This presumption now incorporated in law merely reinforces what is actually taking place.

The Children and Families Act 2014

20 April 2014, by Taylor King Family Law Solicitors

The Children and Families Act 2014 has now received Royal Assent and will come into force on 22 April 2014.

There are three significant changes:

  1. Compulsory mediation,
  2. Continued parental involvement, and
  3. Child arrangement orders.

This article explores these changes.
Read more →

Finding of Fact Hearings

20 December 2013, by Taylor King Family Law Solicitors

Where one party to Children Act proceedings makes an allegation of violence or domestic abuse which is challenged by the other party it may be necessary for the court to hold a fact finding hearing to determine the truthfulness to any allegations before deciding how to progress the case. This is because the outcome of the fact finding hearing can be significant in how the case then proceeds. Read more →

Is A No Contact Order A Breach of Human Rights?

19 September 2013, by Taylor King Family Law Solicitors

The Court of Appeal in M (Children) [2013] EWCA Civ 1147 took the unusual step over overturning an order for no contact.

A father of three appealed against an order refusing his application for contact. He had a history of criminal convictions related to violent behaviour, including causing grievous bodily harm with intent, and the case had involved significant domestic violence. The mother had eventually left the family home and moved to a refuge with the three sons who had often witnessed their mother’s abuse.

Having heard the evidence the judge was in no doubt of the mother’s truthfulness or her real fear for her personal safety. She found that the father had minimised his behaviour and had not learned anything from courses he attended aimed at addressing his violent behaviour. She held that the father’s continuing behaviour was likely to destabilise the children’s home and security.

The Court of Appeal noted that it was exceptionally rare for an appellate court to think about reversing a decision which was based on primary facts.

On appeal, Macur LJ said that the judge’s conclusions were justified and unassailable on appeal but nevertheless careful scrutiny of the outcome was required because such an order was draconian and disproportionate under Article 8 of the European Convention of Human Rights (right to respect for private and family life).

Macur LJ noted that domestic violence, in itself, was not a bar to contact, but should be assessed in the circumstances as a whole.

She concluded that the appeal should succeed on the basis that the judge had failed to consider how the children’s safety and the management of the mother’s anxieties could be achieved under any circumstances of supervision. This was particularly notable given that the judge had stated that “it would be highly desirable if contact could be achieved without undermining other aspects of [the children’s] welfare”.

She stated that in order to reach the conclusion that there should be no contact the court must have considered all reasonable and available avenues which promote the children’s right to family life.

Shared parenting

09 July 2012, by Taylor King Family Law Solicitors

In response to the Family Justice Review the Government has announced its intention to introduce a legislative presumption of shared parenting after separation.

Section 1 of the Children Act 1989 states that the welfare of the child is paramount and sets out a list of circumstances the court should have when making decisions about the child. Whilst continuing involvement with both parents is not contained on that list is can be inferred from some of the others.

A consultation has now been opened on co-operative parenting and implementing the proposed legislative change. The consultation will consider how best to amend the Children Act 1989 to reinforce the principle of shared parenting. It states that the emphasis will be put on mediation but if cases do proceed to court it is intended that a ‘Child Arrangements Order’ will replace existing residence contact orders.

The Government’s intention is to reinforce the expectation that both parents are responsible for their child’s upbringing.

The proposals include providing that the starting point for courts in making decisions for children’s care should be that a child’s welfare is likely to be furthered through involvement with both parents. It also suggests that an additional element should be added to the welfare checklist so that a child’s interest in retaining a relationship with both parents is considered.

The Government, however, wants to make it clear that the aim of these proposals is not about imposing equality of time but encouraging parents to resolve disputes and agree care arrangements without the assistance of the court.

The publication of the consultation paper has however drawn criticisms with views of some practitioners being that the proposed changes will lead to confusion, raise unrealistic expectations, possibly promote parents’ rights over the best interests of the child and lead to an increase in litigation.

Grandparents’ Rights

13 May 2011, by Taylor King Family Law Solicitors

The recent article in The Guardian, “I’ve been robbed of my role” (7th May 2011, retrieved highlighted the painful experiences of three grandmothers who had lost contact with their grandchildren. The article estimates that 1 million grandparents are currently being denied access to their grandchildren. Whilst we are waiting for the results of the Family Justice Review and for the government to propose changes, the court can and does order residence and contact in favour of grandparents.

Grandparents have no automatic right to have contact with their grandchildren. If agreement cannot be reached by negotiation or through mediation, the grandparents are required to seek permission from the court to apply for a contact order. In considering such applications the court will have to balance the benefits of contact with the grandparents as against possible disruption caused to the children if the court gives permission for a contested hearing.

Even if permission to apply is granted, this does not mean that the application for contact will be successful. However, in recent years, the courts have shown an increasing tendency to grant residence and contact orders in favour of grandparents. With regard to residence applications, the courts used to take the view that it was in the child’s best interests if he or she was brought up by their biological parent as opposed to a grandparent, step parent or anyone else.

In the recent case, Re B [2009] UKSC 5, that presumption was challenged by the Supreme Court. The case concerned the competing claims of a father and the maternal grandmother. The child had lived with his grandmother throughout his life and, by consent, a residence order had been granted in favour of the grandmother. The father applied for a residence order, which was opposed by the grandmother on the basis that the child was settled and a move would be detrimental. By a unanimous decision, it was decided that, as the welfare of the child is the paramount consideration, the father did not necessarily enjoy a more favourable position just because he was a biological parent. The Supreme Court ruled in favour of the grandmother.

In another case, Re W (A minor) [2010] EWCA Civ 1280, the mother had applied for permission to appeal against an order that had transferred residence of her child to the paternal grandmother. The background to this case was that the father had applied in 2007 for contact and for the following three years the mother had constantly breached contact orders, made unsupported allegations against the father and on one occasion was sent to prison for contempt. The judge had decided it would be in the best interests of the child to live with her paternal grandmother. In reaching this decision, the judge had regard to the emotional harm that the child would suffer if she remained with the mother because of the mother’s implacable hostility towards contact with the father. The application for permission to appeal the decision was refused on the basis that the judge had properly taken into account the best interests of the child and had not transferred residence to the grandmother in any way as a punishment for the mother’s behaviour.

When Deputy Prime Minister Nick Clegg announced the Childhood and Families Taskforce June 2010, he said “we are looking to promote greater access rights to grandparents. We all know the role grandparent can play in helping children through these difficult times.” It is hoped that the government will be proactive in supporting the rights of grandparents to have contact with grandchildren. Given the cases above, it would appear that grandparents are disadvantaged mainly due to the requirement that they obtain permission (or ‘leave’) to apply for contact or residence. The Family Justice Review interim report in March encouraged arrangements for contact between grandparents and grandchildren, however they made no recommendation that the requirement for leave to apply for residence or contact should be lifted.

It seems likely that the Family Justice Review will recommend that, upon separation, parents should enter into a written parental agreement recording the arrangements for the children’s care after separation. This agreement should also encompass arrangements for contact with the grandparents and other members of the extended families. These parental agreements will not be binding, but they will be constructive to the extent that they consider extended family members.

For the time being, grandparents who are being denied contact will have to face the added inconvenience of seeking initial permission from the court before an application for contact can be made. As with all cases concerning children, early advice and early action is best.