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 Nicola.dunkerley@taylorking.co.uk  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 Nicola.dunkerley@taylorking.co.uk  for further information.

Parental Responsibility and When It Can Be Terminated

20 November 2013, by Taylor King Family Law Solicitors

Parental responsibility is all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and their property.

The mother of a child automatically has parental responsibility.

Since December 2003 fathers who were married to the mother at the time of the child’s birth, or married the mother after the birth, automatically have parental responsibility. For all unmarried fathers, or married fathers of children born prior to December 2003, parental responsibility can only be obtained with the mother’s consent (by written agreement or registering the father’s name on the birth certificate) or by order of the court.

Step parents or civil partners who play a parental role in the life of a child can obtain responsibility with the formal agreement of both parents with parental responsibility. A non parent can apply to the court either for a parental responsibility order or a residence order. A residence order automatically grants parental responsibility.

Married fathers cannot have parental responsibility terminated under a court order.

Applications to terminate parental responsibility can be made by anyone with parental responsibility in respect of the child and, with leave of the court, the child itself.

There is a presumption that, once granted, the termination of parental responsibility should continue indefinitely. The welfare of the child is paramount and the court must ensure that making such an order is only used as an appropriate step in the regulation of the child’s life where the circumstances really do warrant it and not otherwise.

In the case of A v D (Parental Responsibility) [2013] EWHC 2963 (Fam) the mother made an application for a residence order, permission to change the child’s name and for an order terminating the father’s parental responsibility. The father had a long history of violent offences and the mother was victim to severe domestic violence from the father leaving her with post-traumatic stress disorder. The child had witnessed the violence and had complex needs.

At the time of the hearing the father was serving a term of imprisonment for GBH and did not attend. He did however write to the court indicating that he did not oppose the mother’s applications.

The judge held that the father’s parental responsibility should be terminated. He had shown a lack of commitment to the child, his interest lay principally in controlling the mother rather than in the child and it would be intolerable for the mother to continue sharing parental responsibility with the father.

A father whose parental responsibility has been terminated is not however barred from making a future application for contact, or from re-applying for parental responsibility.