Splitting up with a partner can be a very difficult time. Even if the relationship ends on good terms, which very few of us manage, it can still be very hard coping with all the change going on in your life, especially where there are children involved and decisions have to be made about who the children will live with.
It might be very clear to both of you who this should be, but it may be difficult to reach an agreement, if both of you want to look after the children.
It is best if an agreement can be reached between both parents instead of involving the courts. Whatever your feelings and concerns about your former partner, do try and put them to one side and focus on what is best for the children. If it does not prove possible to work together to make arrangements, help is available, some of which is outlined below. You may also wish to consider the use of a personal solicitor.
Mediation
If you’re splitting up and finding it difficult to agree where your children should live, or when they’ll see whoever they don’t live with, you could get some help from a family mediator. Mediators are people who are trained to listen to both sides and help you and your partner work out for yourselves what options you have and then decide which will work best for both of you. Mediators are neutral, they will not take sides and mediators won’t tell you what to do or make the decisions for you. At the initial meeting the mediator will ask about the details of your situation and discuss with you whether mediation will be appropriate in your case. You can choose to attend the first meeting together or separately. To use this service, you both have to be willing to go along voluntarily. Any decisions you make there will not be legally binding. If you do not wish to use a mediation service or are unable to reach an agreement, then you can ask the court services to make a decision for you.
Court system
You can apply to the court to settle your dispute for you. However, the court will also encourage you to try and reach agreement between yourselves if at all possible and if you have not already done so, the court may suggest that you try mediation. A court will only make decisions about children if it feels it is in the best interests of the child to do so. A court can make decisions about:
- Who the child should live with (a residence order)
- Who the child should have contact with and what sort of contact it should be (contact order)
- Whether the father should get parental responsibility of the child if he doesn’t already have this (parental responsibility order)
These are orders of the court and to not comply with them can be a contempt of court with serious consequences.
Residence Order
A residence order determines where and with whom the child will live. The granting of a residence order to someone automatically gives him or her parental responsibility for the child if they do not already have it. Parental responsibility obtained as a result of a residence order will continue until the order ceases. A residence order lasts until the child is 16 unless the circumstances of the case are exceptional, and the court has ordered that it continue for longer.
A residence order can be granted to more than one person and can be made jointly to an unmarried couple. A residence order prevents anyone changing the surname of or removing from the UK (for more than 1 month), any child who is the subject of the order without the agreement of everyone with parental responsibility or an order of the court.
Contact Order
These are orders that require the person with whom a child lives to allow that child to visit, stay or have contact with a person named in the order. Orders continue until the child is 16 years. The court will only make contact orders for children over 16 years old in exceptional circumstances. Contact can either be direct e.g. face-to-face meetings with a person or indirect e.g. by letter, video, exchange of Christmas cards etc. Some orders will be very specific as to times, dates and arrangements for contact; other orders will be more open with detailed arrangements to be made between the parties by agreement. These orders are not just obtained by parents for contact with their children; there can also be orders for contact between siblings or the child and wider family members. Sometimes the order will give directions that the contact is to be supervised by a third person. The order may also only be for a specific period or contain provisions which operate for a specific period.
Parental Responsibility Order
Parental responsibility means all the rights, duties, powers, responsibilities and authority, which by law a parent of a child has in relation to the child and his property. The birth mother of a child will always have parental responsibility unless it is extinguished by the making of an adoption order to another person. Where the child’s father and mother are married to each other at the time of the birth, they both have parental responsibility for the child. Where the child’s mother and father are not married to each other at the time of the birth the general rule is that the mother has sole parental responsibility for the child. However, if a child’s birth is registered or re-registered from 1 December 2003 and the unmarried father is named on the Register, this also gives him parental responsibility.
Ways in which a father can obtain parental responsibility include:
- Drawing up an agreement with the mother (a parental responsibility agreement), which is a specific form that has to be signed by both parents and lodged with the court;
- Marrying the mother; or
- The court making a parental responsibility order if the parents cannot agree on the father having parental responsibility. More than one person can have parental responsibility for the same child at the same time. Parental responsibility is shared between everyone, but individuals can act alone and without the others in meeting responsibilities to safeguard and protect the child.
Same-sex parents
Same-sex parents will both have parental responsibility if they were civil partners at the time of treatment, e.g. donor or fertility treatment.
For same-sex partners who are not civil partners, the 2nd parent can get parental responsibility by either applying for parental responsibility or by becoming a civil partner of the other parent and making a parental responsibility agreement, or jointly registering the birth.
www.gov.uk/parental-rights-responsibilities
CAFCASS
Cafcass stands for Children and Family Court Advisory Support Service. Their job is to safeguard and promote the welfare of children involved in family court proceedings. They advise the courts so the decisions they make are in the best interests of children. They are independent of the courts, social services, education and health authorities and all similar agencies. They only work in family courts.
Children and family reporters are trained and experienced in working with children and families, they may be asked by the courts to help families try to agree on arrangements for their children. Where no agreement is made they may be asked to continue working with the family or to make enquiries and write a report for the court.
At the first directions hearing the court will make decisions about how to move ahead with the application that has been made, this is held in court and attended by the parties to the case, and in most courts a children and family reporter is also available to attend. The court may ask the children and family reporter to meet with the parents to try and find an agreement. If an agreement is not reached, then the court may ask for enquires to be made and a report written. The report will include an outline of the enquiries that have been made and a recommendation about the best way forward. A copy of the report will go to the court and if you have one, your solicitor, or direct to you if you do not. In order to compile the report, the reporter will speak to the parents, the children and may include others such as a doctor, teacher or health visitor. Any information offered to the reporter may be used in the report.
When reaching a decision, the court will take into consideration the wishes and views of all concerned, but it is the court that decides what will happen. Where the court disagrees with the recommendations of the reporter it will explain why.
More information on your rights and responsibilities towards children at the end of a relationship can be found in the web links provided below.
Remember, nothing lasts forever. Visiting arrangements will change with time. Teenage children might want to live with the other parent. New partners may come on the scene. What’s important is to forge a good working relationship with each other, so that, as parents, you can adapt to these changes and continue to give your children the love and care that they need.
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