In an ideal world, we would all love to resolve issues around children after separation through discussion and agreement. Unfortunately, this isn’t always possible and disputes end up with lawyers and judges in the family court. Dad Info takes a look at the role played by family courts.
When should I consider using the courts?
The decision to go to court to resolve differences with your ex partner should not be taken without serious consideration. Many parents report negative experiences of the court processes. Many feel that they are adversarial. This can make co-operation with your ex partner harder in the long term.
Around 85 per cent of parents manage to resolve child arrangements independently, with 5 per cent using mediation services. Only 10 per cent turn to the courts to help resolve separation issues. If you can reach agreement outside the courts, you and your children are more likely to be happy with the outcome. In 2014 the law was changed and attendance at a MIAM (Mediation Information and Assessment Meeting) is now compulsory for divorcing couples before making an application to the Court for a Child Arrangements Order or a Financial Remedy Order, unless a specific exemption applies. Family mediation is a vital step to try and resolve any conflict but sometimes it doesnt work. Please read
Mediation: agreeing without the courts
Mediation – when it isn’t working
But you may need to consider using the courts if you and your ex partner are unable to reach agreement over important issues such as parental responsibility, who your child should live and/or spend time with.
What issues can the family courts decide?
When parents are separating, divorcing or applying for civil partnership dissolution and can’t agree on arrangements for their children, they can turn to the courts for help – in England and Wales there are specialist family courts. In Scotland, the civil courts handle family matters. The family courts can make Child Arrangement Orders that will determine visiting rights and where the child will live.
The child’s welfare is the court’s paramount consideration when looking at questions of contact and residence. The court has a duty to consider certain welfare issues such as:
- the wishes and feelings of the child concerned
- their physical, emotional and educational needs
- the likely effect of any change in the child’s circumstances
- the child’s age, sex, background and characteristics
- any harm or risk of harm
- the capability of both parents to meet the child’s needs
What is a ‘live with’ order?
A ‘live with’ order is a court ruling on where a child will live. An order can be granted to more than one person and can be made jointly to an unmarried couple. It lasts until the child is 16 unless the circumstances of the case are exceptional and the court has ordered that it should continue for longer.
A live-with order also prevents anyone changing a child’s surname without the agreement of everyone with parental responsibility or an order of the court except in Scotland, where a residence order does not prevent a change in surname. It also places certain restrictions on taking children out of the UK.
What is a spend time with order?
A spend time with order requires the person with whom a child lives to allow that child to spend time with a person named in the order. Types of contact vary depending on circumstances. Again, orders generally continue until the child is 16 years old.
Child Arrangment orders are orders of the court and failure to comply with them can be a contempt of court. This can lead to serious consequences.
The family courts continued…
– Mediation: agreeing without the courts
– What kind of contact can I expect?
About the author
Clare Kirby qualified as a lawyer in 1983 and worked for several years in industry. She founded Kirby & Co in 1997. As a member of Resolution and an advanced member of the Law Society’s Family Law Panel she is experienced and respected in the field of family law. Trained as a collaborative lawyer, Clare offers clients a range of options – traditional, and collaborative law – to best meet the needs of the individual clients.
Updated: September 2017
