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Making child arrangements when parents separate

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When parents separate, sorting out the arrangements for their children can become difficult, especially if there is animosity between them. Below, we address the questions we are most frequently asked to help you understand the process and legal position.

 1) What is parental responsibility?

Parental responsibility, (PR) means all the rights, duties, powers, responsibilities and authority that a parent of a child has in relation to child arrangements. For example, this includes decisions about their accommodation, education and medication. If these cannot be agreed, a Specific Issue Order and/or a Prohibited Steps Order can be sought from the court.

 A mother automatically has PR. The father automatically has PR too, if he is married to the child’s mother or listed on the birth certificate after 1st December 2003. A father alternatively can gain PR by marrying the mother, entering into a PR agreement with the mother, being named as the resident parent (the parent who the child lives with) on a Child Arrangements Order or obtaining a PR order from the court. Despite popular belief, PR is not lost if the parents divorce.

2) What if we cannot agree on arrangements for where the children live and who they spend time with?

Every year, more than 200,000 children experience the breakdown of their parents’ relationship. Most parents can make the appropriate arrangements for their children, so that they can maintain a relationship with both of them. The starting point is always to have a frank discussion with the other parent to try and agree arrangements that work for both parties, with ultimately the best interests of the children in mind.

If you struggle to agree on suitable arrangements, mediation might be able to resolve the disputed issues. This could help to reduce the hostility between parents, promoting less animosity moving forward. If mediation is unsuccessful, a parent can apply to the court for a Child Arrangements Order.

3) What powers do the courts have?

The court can make orders to decide with whom the child is to live and who the child is to spend time with, whether it is direct or indirect. The court’s first consideration is always the welfare of the child and this will guide any decisions the court makes. The court considers the welfare checklist when analysing each individual matter.

In some complex cases, the Children and Family Court Advisory and Support Service (CAFCASS) may become involved. This is an independent Family Court Adviser who will examine the case and speak with both parents and the child, depending on their age and circumstances. They will then prepare independent advice and recommendations for the court to assist them with its decision-making.

The first hearing is a directions hearing, which sets out the court’s timetable. It encourages agreements to be made and the narrowing of any issues in dispute. Further hearings could involve the need for witness statements and oral evidence and at the final hearing, the court will review everything before finalising an order.

4) What if my child does not want to see their other parent?

It is important to talk to your child to understand their reasons for not wanting to spend time with their other parent. Children have the right to know both their parents and only in exceptional circumstances will contact time be limited.

If you are concerned that your child does not want to see you due to being influenced by their other parent or family, it is vital you bring this to the court’s attention throughout proceedings, as ‘parental alienation’ can be incredibly damaging to your relationship with your child.

5) Can I change my child’s surname after divorce?

A child’s name can be changed by Deed Poll with consent from everyone with PR.

If consent cannot be obtained, you will have to apply to the court for a Specific Issue Order to change the child’s surname.

6) Do grandparents have any rights?

Grandparents often play a very important role in a child’s life, supporting the parents in providing care and thereby developing strong bonds with their grandchild. If, as a grandparent, your contact with your grandchild has been stopped, the first step would be to communicate with the parents to address any issues. If this fails, an application to court for permission to make an application to see your grandchild would be required. As always, the court’s priority is the welfare of the child. For further information on this topic, please refer to our blog ‘Grandparents Rights – Can’t see your grandchildren?’

7) Can I take my child abroad?

In most cases, before you take your child abroad you must obtain consent from everyone with PR or through a court order. Without the relevant permission, this could be deemed as child abduction, with serious consequences as a result.

If a Child Arrangement Order names you as the resident parent, you can take your child abroad for 28 days without having to get permission from everyone with PR. However, it is still good practice to inform everyone with PR about your holiday arrangements such as flight and hotel details, who you are travelling with and emergency contact numbers. For further detail about this, please see the following blog about 'Travelling with a child with a different surname? Important information you should know'.

If you would like to discuss any issue that appears in this blog, or any other  family law issue, please talk to a member of our Family Team in greater detail.

Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.