Where possible it is obviously advisable to agree as to where the children of separated parents should live and how much contact the non-resident parent should have; however if that is not possible then an application can be made to Court.
The Children and Families Act 2014, which came into force on 22nd April 2014, replaced Contact Orders and Residence Orders with Child Arrangements Orders. These cover the following matters:
- With whom a child shall live, have contact and spend time with;
- When a child is to live, have contact and spend time with that person.
The child or children’s welfare is the most important factor in deciding contact or where a child should live and their best interests are deemed to be of paramount importance. The checklist contained in the Children Act 1989 dictates how the Court shall decide the outcome of a case:
- The wishes and feelings of the child;
- The child’s physical, emotional and educational needs;
- The likely effect any court decision will have on the child if circumstances change as a result;
- The child’s age, sex and background together with any other characteristics which the Court may deem relevant to the issue being decided;
- Any harm the child might be at risk of suffering or indeed has already suffered;
- The capability of the parent/s to look after the child and meet his or her needs;
- The powers the Court has available to it in the proceedings.
The Courts have adopted a new approach in the 2014 Act which aims to encourage out of court resolution. The parties are encouraged to attend a family mediation meeting; if this does not work and Court is the only option then the court process has also changed to encourage an amicable outcome.
The new process is called the Child Arrangements Programme (CAP 2014) and follows these steps:
- Safeguarding checks
- First Hearing Dispute Resolution Hearing
- Case Management directions if agreement not reached, including statements and section 7 reports where appropriate
- Finding of fact hearing, if required having applied the new Practice Direction 12J
- Dispute Resolution Hearing
- Further case management directions if agreement not reached
- Final hearing.
The Court aims to resolve any disputes without the need for a final hearing. The longer the proceedings last, the more animosity there is and the more adverse effect there is on the children.
Every application made to Court will be referred to CAFCASS. They are a court appointed body who effectively work as the eyes and ears of the Court. They will prepare a safeguarding letter by making appropriate enquiries with local authorities, seeking police checks and on accession interviewing the parties on the telephone or in person. Once they have prepared their letter it will be sent to the Court to assist in its decision making.
Throughout the process the case is managed and deadlines are set to keep things moving, so that all necessary information becomes available to assist at each stage.
The Family Court is a considerate one, with the appropriate level of judge assigned to each case on the basis of individual assessment. The children are always put first and a dim view is taken of unreasonable behaviour or the use of children as pawns.
The Court try to make sure where possible the children see both parents, but they also consider gradual change as the status quo is also important to a certain extent.
If at any stage in the proceedings resolution is reached then the arrangements will be set out in an order, giving all parties clarity and direction for the future, minimising contention and the knock on effect on the family as a whole.