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Family Law, Divorce, Separation

Matters relating to Children: FAQ

  • What is “parental responsibility”?

      If you are (or were) married then both parents will automatically have parental responsibility for their children. No court orders are needed. Parental responsibility simply means that you should both consult over all the major decisions affecting the children e.g. change of school, change of religion, consent for non-urgent medical procedures etc.

      As a parent with parental responsibility you can ask the children’s schools to keep you informed regarding open days, school reports etc. if your partner proves uncooperative on these issues.

      You cannot change the child’s surname without agreement in writing from everyone who has parental responsibility.

  • Do I get a court order about the children?

      Prior to the passing of the Children Act, courts considered that it was their duty to make orders for the children every time a divorce was granted. The Children Act turned that concept “on its head”.  The Children Act now says that courts must not make an order concerning the children unless such an order is needed. So, if you can agree arrangements direct between you then you probably do not need a court order just to rubber stamp the agreement that you have reached.

  • Can I take the children abroad?

      Where a residence order is in force no one can take the child out of the United Kingdom without the written consent of the other parent (or permission from the court) except that the person who has the benefit of the residence order can take the child abroad for up to a month without the other parent’s consent.

      A parent cannot remove a child for longer than a month without the consent of the other parent. Many children are now being born to dual heritage parents and consequently, should a relationship end, it is becoming increasingly common for one party to then seek to return to their birth country with the child. If your partner does not consent and you remove the child, you will be committing the criminal offence of abduction. Consequently you must seek the permission of the court to remove the child from the jurisdiction of England and Wales.

      We can act for you and present your case in a considered and thoughtful way.

      Alternatively we can represent you if you are opposing the other parents wish to remove the child.

  • Can I change the children’s surname?

      You cannot change the children’s surname without getting the written consent of both parents or getting permission from the court.

  • What orders can a court make?

      “Residence order” means an order settling the arrangements as to where the child will live.

      “A contact order” means an order requiring one parent to allow the child to visit or stay or have contact with the other. (This used to be called an “access” order). Unfortunately though the court cannot make other parent take up contact.

      “Prohibited steps order” means an order prohibiting somebody from taking specific steps without the consent of the court.

      “Specific issue order” means an order given to decide a specific problem that is not covered above e.g. choice of school.

      “Parenting orders” means ordering one or both parents to undertake certain tasks specified by the court.

  • What does the court take in to account when making its decisions?

      There is a “Welfare Checklist” set out in the Children Act. These are the things that the court and CAFCASS look at when deciding any issues concerning the children. They are:

      • The wishes and feelings of the children concerned (considered in the light of the child’s age and understanding)
      • The child’s physical, emotional and educational needs
      • The likely affect on the child of any change in their circumstances
      • Their age, sex, background, and any characteristics of the child that the court considers relevant
      • Any harm which the child has suffered or is a risk of suffering
      • How capable each of the child’s parents is at meeting the child’s needs
  • But what happens if you can’t agree who the children will live with or when the other one can see the children?

      First of all you should try to sort out matters direct by talking to each other. Advice from solicitors followed by correspondence between solicitors might be helpful if you cannot reach an agreement direct. If this doesn’t work then you’re probably better off by going to mediation rather than launching into court proceedings.

  • What is mediation?

      Mediation is not like marriage guidance counselling. It starts off on the basis that the marriage is over and that you are looking to sort out practical arrangements for two separate homes in the future. Mediation can be just about the children or it can be about “all issues” to include financial matters as well.

      The advantage of mediation is that it is much quicker and a lot cheaper than going through solicitors or the courts. It leaves decisions about your children with you and your partner.  Ideally both of you should decide matters relating to the children yourselves and you should not have to rely upon a third party (namely a judge) to tell you what you to do about your own children.

      A mediator will not tell you what you have to do. The mediator’s role is to facilitate negotiations between both of you in order to enable you to arrive at your own solutions.

  • But if you can’t reach agreement through mediation, where do you go then?

      You can apply to the court. The court has power to make orders regulating where the children are to live (this is called a “residence order”). The court also has power to order the parent with whom the children are living allow the other parent to see the children (this is called a “contact order”).

      The court can also make other orders about specific issues (e.g. what school a child should attend) or prohibiting one parent from doing something (e.g. allowing someone to have contact with a person the court considers unsuitable) but these are rare.

  • What happens if you decide to go to court?

      This is the procedure that will apply if you ask us to start court proceedings on your behalf:

      1. We will draft an application and will send it to the court with a court fee, which is currently £215. The court will then start a file, issue the application and serve the papers on your partner or their solicitors and notify us of the hearing date which is likely to be about five or six weeks later.
      2. Everybody then turns up at court on the hearing date with their solicitor or barrister. Check with us as to whether we will go or whether we will brief a barrister to attend on your behalf. At court there will probably be some negotiations beforehand between the two lawyers acting for you and your partner. If agreement cannot reached in those negotiations then at the appointed time everybody may go before a CAFCASS Officer (Children and Family Court Advice and Support Service Officer). The CAFCASS Officer will see you and your partner, together with your legal representatives, and s/he may suggest that you should try and sort matters out by going through mediation at another time and place, rather than by going through the court system.

        In some courts the CAFCASS officer and the judge may see you together or separately. Different courts have their own particular way of dealing with first appointments and we will be able to explain the system in the court dealing with your case.

        If agreement can be reached then a court order may be drawn up. If agreement cannot be reached then the judge will give “directions”.  These directions will probably include provision for the solicitors for each of the parties to prepare statements and to file those statements at court and to exchange them with each other. The judge will have to decide whether to order a CAFCASS Report.
      3. A report from CAFCASS can be very helpful especially in disputes regarding residence of children. However, CAFCASS reports do take a long time to prepare and therefore this can delay resolution of the case. CAFCASS effectively acts as the “eyes and ears” of the judge in the children’s home environment.

        The court will then re-list the case for a later date. It can re-list it either for a further directions hearing or it could re-list the case for a final hearing.

        In the meantime as you wait for the next court hearing you will have to carry out the directions ordered by the court, e.g. preparing statements, arranging for reports to be prepared etc.
      4. Then you must all turn up on the next court hearing with your legal representative (your solicitor/barrister). The hearing date is likely to be between three to six months after the first directions appointment.

        This may be a final hearing or an interim hearing. If it is a final hearing then the judge may decide to have a review hearing in several months time just to see how the Order is working out in practice.
  • What is the cost of going to court?

      As a general guide expect the costs up to the first directions appointment might be in the region of approximately £1,000 - £2,000 +vat including Counsel’s fees and a court fee up to and including the first directions appointment (thus in the range of £1,500 - £2,500).

      The costs of the second stage are more difficult to predict but could easily be several times the amount incurred in the first stage in addition.  It all depends upon how complex the case is and how many times you have to go back to the court, either for directions hearings, adjourned hearings, review hearings and so forth. That is usually impossible to predict at the outset.

      Sometimes the court can deal with the matter in the time allocated but sometimes the court may have to adjourn the case thus increasing the costs. The court may make an Interim Order and then re-list the case so that the judge can review the progress of the matter in say, six or 12 months time. Each time that you have to attend court the costs will increase according to the amount of time spent on the matter, in preparation and at court on the hearings.

  • Will I have to pay other parties' costs?

      Almost certainly not; it is very unusual for a court to order that one party should pay the costs of the other party when the issue is a legitimate question concerning the welfare of the children. The normal presumption is that each party will have to pay their own legal costs.