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Arrangements over the custody of children (called residence arrangements by lawyers) after the breakdown of a relationship are usually best decided without the intervention of the court. Unfortunately, it is not always possible for the two parties to agree over living arrangements or what level of financial support is appropriate. Both parents normally have a legal responsibility under the Children Act 1989 to look after their children, financially and otherwise, until they are 18 years old or have left full-time education.
Part of the process of filing for divorce involves completing a Statement of Arrangements. This document contains, amongst other information, the details of how the parties to the divorce would like to arrange custody of any children. If both parties are in agreement, and the court is satisfied that these arrangements are adequate and have been agreed between the parties, then the court is very unlikely to interfere.
If the parties cannot agree on child custody, then the court can be asked to settle the dispute. This can happen as part of a divorce or in the case of unmarried parents. Normally, between four and ten weeks after applying for a court order, both parties will be asked to attend a meeting with the judge. The court will generally suggest that the parties meet with a Conciliation Officer to try to encourage an agreement. The alternative – going to court – will almost certainly be a traumatic event for everyone involved and is normally best avoided if possible.
The main advantage of using mediation instead of the court process is that it helps to avoid some of the hurt and anger that is inevitable when trying to settle such emotive issues in court. In addition, when an arrangement is reached by mutual consent rather than being imposed, it is more likely that both parties will honour it. Refusal to attend mediation may also have costs consequences for the party concerned. The disadvantage of mediation is that it can be quite stressful for both parties to have to meet regularly.
Normally, an officer of The Children and Family Court Advisory and Support Service for England and Wales (CAFCASS) will also attend one or more of the meetings. If it is not possible to reach an agreement then the judge will normally request a court welfare report. It is the CAFCASS officer's job to draw up this report and it will involve meeting with the child and the parents as well as other relevant professionals, such as teachers and doctors. It may also involve the CAFCASS officer visiting the parties at home.
Within about three to six months a further hearing will be arranged by the judge to explain the decision. In making its decision the court will consider, first and foremost, what is in the best interests of the child. Where the child is mature enough, their views will be heard and given appropriate weight. The decision will usually follow the recommendations of the welfare report.
In November 2013 the Government issued a paper called 'Supporting Separated Families - Securing Children's Futures', which led to the Children and Families Act 2014, which came into force in April 2014. This is aimed at speeding up the process of dealing with the future of the children of divorced parents. It introduced the 'Child arrangement order' to replace the 'residence' and 'contact' orders used previously.
Recently a number of cases involving parents of different nationalities have come to court, with one partner seeking to take the children abroad or a long distance away within the UK. The decisions reiterate the principle that the prime consideration is the welfare of the children.
Children and Families Act 2014
Children and Families Act 2014
More recently a child maintenance calculator has been placed on the Government website to help people calculate the likely child maintenance payable.
It is likely that where there is a European element to the family situation, child maintenance arrangements will change after Brexit. Watch this space.