“All I wanted is what’s best for the children…”

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Is going to Court for a Child Arrangement Order the best way?

It is a sad fact that children often get caught up in adult issues although everyone does their best to avoid it. One of the hardest areas of a separation and divorce is sorting out the arrangements for the children. Parents will need to decide who the children will live with and how much time they spend with the other parent.

Family Solicitors should always advise that their clients should try to reach an agreement but that is not always possible especially when one party issues Court proceedings.

What is a Child Arrangement Order?

As of 22 April 2014 the Children’s and Families Act 2014 was introduced seeking to modernise family law. The previous terms of “Residence” (where a child lives) and “Contact” (time spent with a child) were changed to be dealt with under the umbrella term “Child Arrangements”.

A Child Arrangements Order specifies what happens to a child in a separation. This can be agreed in terms of:

  1. Which parent the child lives with;
  2. Which parent the child spends time with; and
  3. When the child spends time with each of the parents.

It is also possible to specify a Live With Order (previously known as Shared Residence), which is where a child lives with each parent for a set period of time.

What happens in Court?

When Court proceedings come to their conclusion and a contested final hearing is listed, each parent has to confirm to the Court, usually in a signed statement, the child arrangements they would like the Court to put in place. This will ordinarily state that they seek this because it is in the children’s best interests.

However proceed with caution. It can be very easy to fall into trap of thinking that the Court will decide that either parent’s wishes are right. This can become a no win situation for both parents.

This is clarified in the Children Act 1989 (as amended) which states that the Courts paramount consideration when deciding what Child Arrangement Order to make is the child’s welfare. Once the decision is in Court, it is for the Court to decide what is best for the child and they are not limited to either side’s proposals.

As an example, if both parents have different wishes on where and when a child should live, the Court can order whatever it deems is best for the child. This may not be either parents’ proposal as the Court may decide on a completely alternative solution to the Child Arrangement Order. Please also note it is not unheard of that one parent may receive even more than they were asking for and as long as the Court fully justifies the Order, it is then very hard to appeal.

How does the Court decide on a child’s arrangements?

To help, the Court use a tool known as the Welfare Checklist, which is embodied within the Children Act 1989. The Welfare Checklist specifies certain factors the Court should consider when deciding what is best for the child. However the checklist does not include a “what do the parents want” category, although the Court will of course consider it.

So why could it be better to agree arrangements out of Court?

It can be frustrating when you are seeking legal advice and your lawyers are repeatedly advising you to try and agree, there is however a reason for this. When you negotiate you are in control of the terms and you get to decide what you can and cannot live with. When the Court decides, you lose this power and it becomes a Court decision. As a family solicitor I know there are certain cases where a contested hearing is unavoidable and that is fine, but just proceed in the knowledge that this option comes with risks.

Is there an alternative way?

As an alternative solution to Court separating couples can instruct a Family Solicitor who is trained and practices Mediation. Mediation will to avoid uncertain outcomes at Court by reaching a settlement prior to getting to that stage. For further information on how Mediation can help in these situations please contact Farhana Butt on 01733 882800.

For further information on how our Family team can help you please email [email protected] or call 01733 882800.

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