FAQ Divorce Law

What are my rights as a parent?

Family law does not focus on the rights of a parent, but of ‘parental responsibility’ for a child. A mother always has parental responsibility for her child. A father has parental responsibility for his child in the following circumstances:

  • he is married to the child’s mother when the child is born; or
  • he marries the child’s mother; or
  • his child was born after 1 December 2003 and he is named on the birth certificate when the child’s birth is registered
  • his child’s birth was registered before 1 December 2003 and he was not named on the birth certificate but the birth is re-registered to include his name with the mother’s consent; or
  • he has a parental responsibility agreement with the mother; or
  • he has a parental responsibility order from the court; or
  • he has a residence order from the court; or
  • he becomes the child’s guardian.

What does PR mean on a practical basis?

In practical terms Parental Responsibility means the power to make important decisions in relation to a child – for example, decisions about whether a child should receive medical treatment, changing a child’s surname, travelling abroad with a child and which school they should attend. 

What happens to the children if we split up?

The arrangements for your children if you separate will be dealt with in a similar way whether you were married or not. Initially you should try to agree on who the children will be with and when. If an agreement cannot be reached then you might want your Solicitor to set out your proposals in a letter. If an agreement cannot be reached via Solicitor’s correspondence then your Solicitor will discuss with you the possibility of making a referral to Mediation. If Mediation is not suitable or you fail to reach an agreement with the assistance of a Mediator then you will have to consider making an application to Court to have the matter determined by a Judge. The Court will make its decision based upon what it feels to be in the best interests of your particular children. The Court determines this by reference to a welfare checklist which includes but is not limited to the following:

  • The ascertainable wishes and feelings of the children concerned considered in the light of their ages and understanding;
  • The children’s physical, emotional and educational needs;
  • The likely effect on the children of any change in their circumstances as a result of the Court’s decision;
  • The children’s ages, sexes, backgrounds and any other characteristics of the children which the Court considers relevant;
  • Any harm that the children have suffered or may be at risk of suffering;
  • The capabilities of the children’s parents and any other person in relation to whom the Court considers the question relevant in terms of their abilities to meet the children’s needs;
  • The powers available to the Court.

What if we can't agree on who the children live with?

Parents should try and decide together with whom the children should live and how often they should see the other parent. If you cannot decide then you should consider attending Mediation in the first instance. Before an application can be made to Court you must attend a Mediation Information and Assessment Meeting (MIAM). If Mediation is not an option, then the next stage would be to issue an application at the Court.

What is a MIAM?

If you are in dispute with your ex, or are having difficulties settling your separation, you may be thinking about court proceedings. But before an application can be made to court, you are now required to attend a Mediation Information Assessment Meeting (MIAM). The aim of the meeting is to see if mediation could be used to resolve your difficulties, rather than going straight to court. Courts are required to know that mediation has been considered before they are able to proceed with your application.

MIAM stands for Mediation Information and Assessment Meeting.

The MIAM is a meeting between you and a mediator to find out if there are alternative ways to find solutions to your problems.

 

The mediator will explain to you:

•   what your options might be;

•   what mediation is, and how it works;

•   the benefits of mediation and other appropriate forms of resolving disputes;

•   the likely costs of using mediation;

•   if you are eligible for free mediation and Legal Aid.

 

The meeting can be between the mediator and just you, or with your ex-partner too.

The meeting usually lasts around 45 minutes.

You may be eligible for Legal Aid to cover the cost. But if not, your local service will be able to advise you of their charges.

If, after your MIAM, it’s considered that mediation is not suitable in your case, the mediator will supply you with a form. This form confirms that you have attended a MIAM. A Court will then allow you to issue proceedings.

My ex-partner won't let me see my children, what can I do?

In the first instance you should try and speak to your ex-partner to obtain an explanation of why they are not allowing you to see your children. If an agreement cannot be made for contact to restart, then you should consider attending Mediation to benefit from an independent third party acting as a facilitator for you. If this is not successful you should consider making an application to the Court for a Child Arrangements Order.

Whilst Court should be treated as a last resort, it is sometimes the only viable option because the only person who can legally force your ex partner to allow you to spend time with your children is a Judge.

How do we work out child maintenance?

If you want to agree child maintenance between yourselves you can, this is called a family-based arrangement. If you need help you can contact the Child Maintenance Options Service cmoptions.org. If you cannot agree payments then you will need to contact the Child Maintenance Service.

Can the children be moved away by a parent with shared custody?

If there is a Child Arrangements Order/Residence Order in force with respect to a child, no person can remove the child from the Court’s jurisdiction (England and Wales) without the consent of every person with parental responsibility, or without leave of the Court.

However, if there is a Child Arrangements Order/Residence Order in favour of one parent, this empowers them to remove the child from the country for no longer than a month, without the requirement to obtain consent (as long as it does not breach the other provisions contained within the Order). This enables parents to take their children on holiday.

The situation with shared residence is less clear, as the children live with both parents. Generally, if the Order says that the child resides with both parents then they will both be able to take the child out of England and Wales for up to one month (as long as it does not breach the other provisions contained in the Order).

In circumstances where one parent wishes to move with a child outside of England and Wales and no consent can be obtained from the other parent with parental responsibility then they would need to apply for Leave to Remove the child from the Country. Equally, the parent who would be left behind could apply for a Prohibited Steps Order.

What is a Prohibited Steps Order?

A Prohibited Steps Order ‘PSO’ is an Order that provides that no step that could be taken by a parent in meeting their parental responsibility for a child, and that is of a kind specified in the Order, shall be taken by any person without the consent of the Court.

A PSO is concerned with a single specific issue and imposes a restriction, for example, on changing a child’s surname, removing a child from the UK (where there is no child arrangements order in force) or in connection with the medical treatment of a child.

When considering an application for a PSO the child’s welfare will be the Court’s paramount consideration and it will have regard to the statutory checklist. The court will also have to be satisfied that it would be better for the child to make an Order than not.

The Court must also consider the rebuttable presumption that involvement of each parent (of some direct or indirect kind but not any particular division of a child’s time) in the child’s life will further the child’s welfare.

What is a Child Arrangements Order?

A ‘child arrangements order’ decides:

  • Where your child lives;
  • When your child spends time with each parent;
  • When and what other types of contact, like phone calls, take place.

‘Child arrangements orders’ replace ‘residence orders’ and ‘contact orders’. Parents with these orders don’t need to re-apply unless variation is required.

‘Parenting Plans: Putting children first – a guide for separating parents’ is a free booklet designed to help parents reach agreement about arrangements for their children following separation or divorce. You can get a copy from your local family Court or you can download a copy from www.tsoshop.co.uk, search for ‘parenting plan’.

How do you enforce a Child Arrangements Order?

The timing of such applications needs to be considered carefully. Where it is alleged that the terms of an order have been breached the court will need to investigate the nature of any breaches and establish the reasons for them. In instances where the court takes the view that the breaches have occurred without good reason there are a number of enforcement orders that can be made.

A range of Enforcement orders can be made:

  • A person in breach of the terms of an order can be ordered to carry out unpaid work.
  • Where a person has caused financial loss as a result of breaching an order they can be ordered to pay compensation.
  • In cases of significant and persistent breaches the court can order a change of residence for the child/children.

Even where there are clear breaches of a child arrangements order obtaining an enforcement order is not always straightforward. The court must always have primary regard to the welfare of the child/children involved. In some instances, imposing an enforcement order would negatively impact on the child.

The courts do appear to be taking a tougher stance in cases of non-compliance with Child arrangement orders and in recent years there have been a number of reported cases where the parent in breach has been committed to prison for a short term or where the main residence of the child has been switched to the parent seeking contact.

What is a Specific Issue Order?

A specific issue order may be made under section 8 of the Children Act 1989 (ChA 1989). It gives directions for determining a specific question that has arisen, or that may arise, in connection with any aspect of parental responsibility for a child.

It can be used to determine questions about a child’s upbringing, eg whether the child should go to a state school or be educated privately or in relation to medical treatment including immunisation. A specific issue order can be made on its own or with a child arrangements order (CAO).

What is a Fact-Finding Hearing?

A Fact-Finding Hearing is a type of Court hearing that considers the evidence surrounding allegations, and the Court will make a decision as to whether alleged incidents did or did not happen. Evidence is heard, which will normally include both parties being cross-examined. After having heard the evidence, the Judge will decide whether the alleged incidents happened or not.

Most commonly, these allegations concern domestic abuse. Domestic abuse includes neglect, emotional and physical harm and violence. 

When making a decision the Judge has to consider the allegations made by each side. It is for the person making the allegations to prove that they are true. The Judge will consider on the balance of probabilities whether the allegations are true or not. This means that the Judge will consider whether it is more likely than not that the allegations are true

What is a Final Hearing?

At the Final Hearing the Judge will consider all of the available evidence, this will include evidence provided by the parties, any relevant Cafcass reports and information that has been provided by third parties such as police disclosure. If there has been a Fact Finding hearing the Judge will also take into account, any findings made in the course of those proceedings. 

Using all of this information the Judge will assess and come to a decision guided by the welfare of the children involved. The Judge will use the evidence before them in conjunction with the ‘welfare checklist’ in order to come to a decision which is in the best interests of the children. 

The Judge may decide to make no order or may consider that a Child Arrangements Order detailing residence and/or contact arrangements is necessary.

Who are CAFCASS?

The Children and Family Court Advisory Support Service (CAFCASS) represent children in family court cases in England and Wales and promote the welfare of children and families.

What is a Section 7 Report?

An independent social worker involved in cases where an application has been made to the Court in accordance with the Children Act 1989 writes a report in relation to the case and provides an evaluation and assessment of the circumstances of the case.

The Cafcass worker will spend time not only with you and ex-partner to observe and take note of any concerns but will spend time with your children alone. Alongside, speaking to family members and other people such as; teachers.

If you have concerns with regards to the contents of the section 7 report, this can be contested with the Court.

What is a Section 37 Report?

A Section 37 report is ordered by the Court in order for the Local Authority to assess whether a child or children are in significant harm. The outcome of this report will determine whether Care Proceedings will need to be initiated.

Why has the local authority issued care proceedings?

There are a number of reasons why the local authority may issue court proceedings; it could be one or a number of issues of concern including neglect, emotional harm or physical harm or parental issues with drug/alcohol misuse, mental health issues or low cognitive functioning.

There are steps the local authority may take prior to proceedings starting in which you will be involved, called pre-proceedings.

What can pre-proceedings involve?

  1. Your child may already be in the care of the Local Authority following an agreement by you known as a ‘Section 20’ agreement. If this is the case and you want your children returned to your care, you can withdraw your consent. If, however, the Local Authority does not think your children should be returned to your care then they may apply to the Court for an Order.
  2. The Local Authority may convene a Child Protection Case Conference to which various agencies will be invited, for example, Midwifery, Health Visitors, school representative, GP, Police. The social work team will also be in attendance as may additional family members. This can result in your child being made the subject of a child protection plan OR a child in need plan.
  3. The Local Authority may send you a letter (known as a ‘PLO’ (Public Law Outline) letter), giving you a last opportunity to cooperate prior to issuing proceedings.
  4. In the event you receive an ‘Immediate Issue Letter’ your matter will be heard by the Court. If you receive such a letter, please contact us immediately.

What if I can’t afford to instruct a solicitor privately?

If the local authority has issued care proceedings in relation to your children you are entitled to free legal advice. You may also be entitled to be represented under the legal help or legal aid scheme in respect of other matters relating to your children. Please do contact us to discuss your eligibility for legal aid.

What is a Care Order?

A Care Order is made under section 31 of the Children Act 1989. If a Court agrees there is evidence that it is more likely than not that a child is at risk of suffering significant harm, or has suffered significant harm, it may make a Care Order.

The consequence of a Care Order is that the Local Authority (LA) will now share Parental Responsibility with the parents and may impose limitations on how the parents choose to exercise their PR, for example by removing a child to live in foster care.

The LA must still consult with parents and keep them informed of decisions that they want to make. The LA is also under a duty to make sure that parents and children have ‘reasonable’ contact with one another while the Care Order is in force.

An ‘Interim Care Order’ is an Order the Court may make before the final hearing of any application by the LA for a final Care Order. Care proceedings are now supposed to conclude as quickly as possible or in any event within 26 weeks. While the Court is gathering information to enable a decision which protects a child’s best interests, the Judge may need to make an interim order to keep the child safe before considering all the evidence at final hearing.

What is a Supervision Order?

If the Court agrees that there is evidence that it is more likely than not that a child has suffered or is at risk of suffering significant harm, it may make a Supervision Order as opposed to a Care Order. Supervision Orders generally last between 6 months to a year and they mean that a family will have a named social worker who will continue to visit and monitor the family while the Supervision Order is in force.

A Local Authority does not share Parental Responsibility with parents under a Supervision Order.

What is an Emergency Protection Order?

If a Local Authority have serious concerns that a child is at risk of immediate harm, they can apply to the Court for an emergency protection order under section 44 of the Children Act 1989. These orders must only be used in situations of real urgency and can only last for a short period of time (8 days with a limited ability to extend).

What is the role of the children’s guardian?

In care proceedings, the Court will usually appoint a guardian for the child concerned. The guardian will be an independent professional and will advise the court on the child’s best interests.

What is an injunction?

An injunction is a court order that requires someone to do or not to do something.

There are two main types of injunctions available under Part IV of the Family Law Act 1996:

  • A Non-Molestation Order;
  • An Occupation Order.

A Non-Molestation Order is aimed at preventing your partner or ex-partner from using or threatening violence against you or your child, or intimidating, harassing or pestering you, in order to ensure the health, safety and well-being of yourself and your children.

An Occupation Order regulates who can live in the family home, and can also restrict your abuser from entering the surrounding area. If you do not feel safe continuing to live with your partner, or if you have left home because of violence, but want to return and exclude your abuser, you may want to apply for an occupation order.

Breach of a Non-Molestation Order is now a criminal offence; however, you should still be able to take your abuser back to the Civil Court for breaking the Order, if you prefer this.

If you already have an injunction, you may have a power of arrest attached, and you can also have powers of arrest attached to an Occupation Order. These powers come into effect if your abuser breaks the order.