One of the most difficult things for people facing the breakup of their marriage or relationship, is the dispute that can then so easily arise about the future care arrangements for the child or children of the family.
You will need to take legal advice to find out where you stand and how the law deals with these kinds of dispute. You should seek advice from highly experienced family lawyers who recognise the impact that legal proceedings can have on children.
At Glynis Wright & Co, all of the team know that issuing proceedings should be the last resort for parents after they have tried to sort out the dispute that has arisen in other ways, for example, mediation. It is less than ideal having decisions about your children made for you by a District Judge or a Bench of Magistrates. It should be the parents of the children who make the decisions. However, from time to time there is no alternative and provided that parents are able to confirm that they have attended a Mediation Information and Assessment meeting prior to issuing court proceedings and have been advised that mediation is not suitable for them, an application can be made to the court.
The team at Glynis Wright & Co can help you to negotiate the matter of the future care arrangements for the children if you do not feel able to mediate with your spouse or partner. If all else fails, they will assist you in bringing court proceedings. All of the lawyers in the practice are experienced in representing their clients at court hearings and can act as an advocate for their client. For those clients who feel able to represent themselves but need a helping hand in the background, Glynis Wright & Co can offer a consultancy service on a pay as you go basis. We adapt to the needs of our client.
When court proceedings are issued, the relevant law is the Children Act 1989. The Act states that the most important factor in determining the arrangements for a child is what is in the child’s best interests. The court is directed not to make any orders unless it is considered that an order is beneficial to the child.
In family law, what used to be called “Residence” and “Contact” are now called Child Arrangements Orders. So you can now have a Child Arrangements Order that a child or children reside with a specified parent and a Child Arrangements Order that a child spend time (or have contact with) a specified parent. The Children’s Act states that a child’s welfare is of paramount consideration when the court considers any question in relation to the upbringing of a child. The court applies what is known as the Welfare Checklist to help reach its decision.
The factors taken into account are as follows:
• Wishes and feelings, considered in light of the child’s age and understanding
• Physical, emotional and educational needs
• Age, sex, background and any characteristics which the court considers relevant
• The likely effect of any change in the child’s circumstances
• Any harm which the child has suffered or is at risk of suffering
• How capable each parent is in meeting the child’s needs
Usually at the first hearing the parties are encouraged to reach an agreement if possible. This is called an FHDRA (First Hearing Dispute Resolution Appointment).An independent child and family reporter (CAFCASS officer) will often be present at the appointment to assist the District Judge and indeed the parties in reaching an agreement. If no agreement can be reached and if there are welfare issues to consider the CAFCASS officer may be directed to prepare a report on the issue of the child arrangements orders that are being sought or that should apply. Directions may also be made for the filing of evidence by the parties to assist the court in making its decision at a final hearing.
It can take up to 14 weeks for the CAFCASS report to be prepared and therefore the next hearing may not be listed until approximately three to four months after the first appointment. The next hearing is called a DRA (Dispute Resolution Appointment) where it is hoped that final orders can be made with the consent of both parties and taking into account the recommendations of the CAFCASS report (if one has been ordered). Usually parties are able to agree on the arrangements for the children upon considering the CAFCASS report thus avoiding the emotional strain and costs of a contested hearing.
As with all court proceedings in family matters, if an agreement can be reached before the contested hearing, proceedings can be brought to a close provided that the District Judge or the Magistrates are happy to make an order enshrining the terms of agreement reached. However, if all else fails the matter will be set down for a Final Hearing at the end of which the District Judge or the Bench of Magistrates will make final Orders based on their careful assessment of the case and what is best for the child or children who are the subject of the proceedings. This will only be a small number of cases as most do settle without the need for a Final Hearing.
CONSULTING WITH CHILDREN IN MEDIATION – LEICESTER
There has been a growing concern about the impact of court proceedings on children of families who are breaking up.
The research conducted has indicated that the delay involved in court proceedings can impact negatively on children who are often in limbo awaiting the outcome of the court proceedings before knowing what their family arrangements are going to be.
Article 12 of the Convention on the Rights of Children (Respect for the views of the Child) states that when adults are making decisions that affect children, children should have the right to say what they think should happen and have their opinions taken into account. This does not mean that children tell their parents what to do. Article 12 is designed to encourage parents to listen to the opinion of children and involve them in the decision making process. This can be particularly important when children are facing family breakup.
In practice, parents listening to their children can be difficult to achieve. Sometimes, the breakup of the family that results in separation or divorce means that the usual communication channels are no longer open to families. Trust can break down between the parents who also become immersed in their own emotional turmoil. It is easy to overlook the fact that children need to be kept informed and have a say.
Glynis Wright, the Head of Practice, is one of a small number of mediators in the UK who is qualified to consult with children within the mediation process along with the adults. It is necessary for the parents to be in mediation themselves for Glynis to become involved in consulting with their children. Consulting with children whose parents are going through separation or divorce can be so important because it offers the children an opportunity to express to an independent adult their views about what is happening to them. It is also in accord with the spirit of Article 12 of the Convention on the Rights of Children.
Research has shown that children are likely to suffer less emotional trauma from family break up if they feel they have a voice and are well informed about the changes they are facing. Consulting with children in mediation can also help parents to understand their child’s perspective where family communication has broken down.
If this is something that you think will help with agreeing child arrangements on divorce or relationship breakup, then complete the contact form indicating that you are interested in your child or children being part of the mediation process, and Glynis will call you to discuss the process and to explore whether it is appropriate for your family or not and how to go about it.