When parents separate they will obviously need to sort out arrangements for where their children will live and what time the children will spend with each parent. Hopefully, they will be able to sort out these arrangements by agreement, but if that is not possible then they may need to ask the court to sort out the arrangements for them. This is done by applying to the court for a child arrangements order.
The power of the court to make child arrangements orders is set out in the Children Act 1989. The Act defines a child arrangements order as “an order regulating arrangements relating to any of the following—
(a) with whom a child is to live, spend time or otherwise have contact, and
(b) when a child is to live, spend time or otherwise have contact with any person”.
So the order will essentially set out what time the child will spend with each parent.
The order will generally last until the child reaches the age of sixteen.
Note that there is no particular distinction between ‘living’, ‘spending time’ or ‘having contact’ with a parent. Thus the order can be anything from the child spending equal time with each parent, to the child living with one parent and just having occasional contact with the other parent, or even having no contact at all.
And contact can be visiting or staying, direct and/or indirect, unsupervised or supervised.
‘Staying contact’ refers to contact whereby the child stays with that parent overnight, whereas ‘visiting contact’ refers to contact during the daytime, with the child returning to the other parent at night time.
‘Direct contact’ is where the child actually sees that parent, whereas ‘indirect contact’ refers to contact via indirect means, such as letter, telephone, email, text message, and so on. Note that contact can be both direct and indirect, with the child having indirect contact in between direct contact visits.
Lastly, supervised contact is where there are concerns over the parent having direct contact with the child, so the contact visits are supervised by someone trustworthy, for example a relative, or a supervisor at a child contact centre.
So now that we know what a child arrangements order is, the next question is: how does the court decide what order to make?
The overriding principle is that the child’s welfare is be the court’s ‘paramount consideration’. In other words, the court’s decision will be what it considers is best for the welfare of the child.
The court presumes it’s best for the child’s welfare that both parents are involved, unless proven otherwise.
To determine the child’s welfare, the court considers a ‘welfare checklist,’ prioritizing factors crucial for their best interests. These factors include:
1. The ascertainable wishes and feelings of the child concerned, considered in the light of the child’s age and understanding. Thus, generally speaking, the older the child the greater weight the court will give to the child’s wishes. And there can come a point with an older child when their wishes will actually determine the outcome.
2. The child’s physical, emotional and educational needs. It may be that the child has some special needs, and that one of the parents is best suited to meet those needs.
3. The likely effect on the child of any change in their circumstances. Thus, for example, if the child is living with one parent and the court is considering making an order that they should move to live with the other parent then obviously that move court have a serious effect (good or bad) upon the child.
4. The child’s age, sex, background and any of their characteristics which the court considers relevant. These days the sex of the child is less likely to be relevant to the outcome of the case, but such things as their religious beliefs and particular interests could be.
5. Any harm which the child has suffered, or is at risk of suffering. Obviously, this would have a very significant bearing upon the outcome.
6. Lastly, how capable each of the parents is of meeting the child’s needs. This will cover not just parenting skills, but also practicalities such as work commitments, which obviously could have a bearing on the capability of the parent to meet the child’s needs.
For further information on how we can help, please see our Child Arrangements page.
Walker Family Law is an award-winning family law practice, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration.
Please contact us if you require any further information.
We wrote here back in September 2022 about the scourge of delay in court proceedings concerning children, with particular reference to private law proceedings between parents regarding arrangements for their children.
Sadly, the latest statistics show that the scourge of delay in child proceedings, (and in private law children proceedings and public law children proceedings) (i.e. proceedings involving the local authority)) has not gone away.
In fact, the problem in relation to private law proceedings has hardly improved at all.
In December the Ministry of Justice published its latest quarterly statistics for the Family Court, for the period July to September 2023. The statistics showed that in that period it took on average 45 weeks for private law cases to reach a final order, i.e. case closure.
In September 2022 we reported that such cases were taking an average of 46 weeks to reach a final order. That was the highest value since 2014, when the quarterly Family Court statistics were first published.
The Law Society, the representative body for solicitors, warned that the statistics “show a growing crisis in the family justice system”.
Law Society president Nick Emmerson said: “There were more than 80,000 children caught up in the family backlogs last year. We are seeing similar numbers this year. It is unacceptable that thousands of children are waiting almost a year to find out who they will be living with long-term because of delays in the family court system.
“Delayed justice can cause significant harm to the wellbeing of both children and parents by preventing them from having the stability they need to thrive. Research shows that children involved in private law proceedings are more likely to experience depression and anxiety.”
The latest Family Court statistics did not include data for the timeliness of public law cases.
However, such data was included in the annual report and accounts of the Children and Family Court Advisory and Support Service (‘Cafcass’, which looks after the interests of children involved in family proceedings), which were published in December.
The report covers the year to March 2023, and shows that in the final quarter of that year (January to March 2023) the average length of public law care and supervision proceedings was 46 weeks, which was 10 weeks longer than reported for the same period in 2020.
It should of course be noted that the Children and Families Act 2014 introduced a requirement that public law proceedings should be completed within 26 weeks, a target that is clearly not being met in very many cases.
Cafcass says that delays “continue to have a negative impact on children”, and that: “Delay for children as a result of longer case durations is now the single most pressing issue for the family justice system.”
Cafcass reports that it has prioritised reducing delay, although an Ofsted inspection of Cafcass in January 2023 concluded that delayed proceedings in most instances are outside of Cafcass’ control, citing a range of reasons, including a lack of court time, constrained court administrative capacity and local authority delays.
Sadly, there is little that families involved in public law proceedings can do to reduce delay in their cases. As Ofsted indicated, the answer primarily lies with providing greater resources for courts and local authorities.
But whilst similar considerations apply regarding court resources in private law proceedings, parents involved in such proceedings are able to take steps to reduce delays.
For one thing they can ensure that they comply with the timetable set by the court, in particular for filing evidence.
But they can also avoid court proceedings entirely, by seeking an out of court solution, for example via family mediation, collaborative family law or arbitration. Resolving matters out of court will not only be quicker for them, but will also of course reduce the pressure on the court system for others.
For further information on how we can help, please see our Expertise pages.
It’s a simple question, but with a not quite so simple answer.
For the sake of this post we will assume that the parents have separated and that the children live mainly with one of the parents. We will call that parent the ‘parent with care’, or ‘PWC’, and the other parent the ‘non-resident parent’, or ‘NRP’ (these are terms that are no longer officially used, but they make it easier to explain what follows).
When the parents separate they will obviously need to sort out a child maintenance arrangement. Hopefully, they will be able to do this between themselves by agreement, but if not then they will need to have it sorted out for them.
Until the advent of state-arranged child support maintenance under the Child Support Act 1991, that meant the PWC applying to the court for a child maintenance order.
As we will see in a moment, the court still has the power to make child maintenance orders. However, the Act took away that power in the vast majority of cases, giving it instead to what is now the Child Maintenance Service (‘CMS’).
Accordingly, in most cases where the parents cannot agree a child maintenance arrangement they (usually the PWC) will have to ask the CMS to sort it out for them.
So how long does a CMS child maintenance arrangement last?
The answer to this is actually quite simple.
A CMS child maintenance arrangement lasts until the child attains the age of sixteen, or if they are in full-time education (up to and including A level or equivalent), until they attain the age of twenty. (It should be remembered that since 2013 the law has required that young people continue in education until the age of eighteen, unless they are in employment or training.)
But the end of a CMS child maintenance arrangement does not necessarily mean the end of the NRP’s liability to maintain the child.
What happens if, as is obviously often the case, the child goes into advanced (i.e. tertiary) education, or remains dependent beyond the age of twenty for some other reason? Can the NRP be required to pay maintenance for the child in such circumstances?
The answer is yes, but as the CMS no longer has jurisdiction the matter has to be dealt with by the court.
As mentioned above, the court still retains the power to make child maintenance orders, just as it did prior to the coming into force of the Child Support Act.
But the rules as to how long the maintenance lasts under an order are quite different to the rules as to how long a CMS maintenance arrangement lasts.
The starting-point is that a child maintenance order should not extend beyond the date of the child’s eighteenth birthday.
However, the court can order that the maintenance should continue beyond the child’s eighteenth birthday, if the child is still in full-time education, or if there are special circumstances, for example where the child remains dependent because they suffer from a disability.
The next question, then, is what is ‘full-time education’?
The answer to that depends on the court, but the court can include tertiary education up to degree level, including any gap year. Accordingly, a NRP could potentially be required to pay maintenance until the child is twenty-two years old.
In short, you will be liable to pay child maintenance until the child attains the age of sixteen, but could be liable all the while they are in full-time education, which can include tertiary education.
As we stated at the outset, hopefully separating parents will be able to sort out child maintenance arrangements by agreement, but if they do then they should also agree how long the maintenance should last, having regard to the above.
If you need help sorting out child maintenance arrangements, including how much should be paid, then you should seek expert legal advice.
For further information, please see the Child Arrangements page.
Please contact us if you require any further information
It is a sad fact that when separated parents fall out then each may make threats against the other.
One such threat, and unfortunately not an uncommon one, is that one parent will take their child from the other.
But when it comes to the question, can my ex take my child away from me? Ultimately, the decision of which parent a child should live with, is a matter for the family court to decide, rather than the parents.
Of course, one parent may attempt to take the law into their own hands, so we will examine here two scenarios: where one parent seeks to take the child from the other through the courts, and where they try to do so without a court order.
(Note that, for simplicity, we use here the term ‘residence’, to indicate with whom the child will reside, or spend most of their time. Residence is, in fact, an old term, replaced by child arrangements orders that state with whom the child should live.)
Obviously, it is usually the case that when parents separate their child will reside primarily with one of the parents.
And obviously the other parent may think that the child will be better off residing with them.
In such a situation, the proper course for the other parent is to apply for a child arrangements order, stating that the child should live with them, not the other parent.
When deciding what order to make the court will consider what is best for the welfare of the child.
And to determine what is best for the welfare of the child the court will consider a number of factors, including:
In short, when it comes to the question, can my ex take my child away from me? If the court decides that your child will be better off living with your ex then, yes, it can order that the child be taken from you. However, even then the court would normally expect that you have regular contact with your child.
Sometimes, as we have said, a ‘non-resident’ parent may seek to take the law into their own hands, by taking the child from the other parent, or perhaps by refusing to return the child to the other parent after contact.
What should the parent with whom the child lived do in such a situation (assuming they think the child should live with them)?
The answer is to make an urgent application to the family court for an order that the child be returned to them.
And such an application will be determined by the court in exactly the same way: by reference to what is best for the welfare of the child.
And as mentioned above, one of the factors that the court will specifically consider is the likely effect on the child of any change in his or her circumstances. Accordingly if, as may often be the case, a sudden move from one parent to the other is considered to be bad for the child’s welfare, then the court may well order that the child be returned to the parent with whom they were living.
Whether the other parent has taken your child from you or has applied to the court for an order that your child live with them, you should take urgent legal advice. For more information, see our Child Law Solicitors page. In the event that social services are involved in your case, please see our Child Law Involving Social Services page. To contact a member of the team, please visit our Contact Us page.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child law, and arbitration.
Modern families, as we all know, come in all shapes and sizes. And the different types of family makeup can raise issues that can be of considerable importance in a family law context.
One such family type is what is commonly referred to as the ‘blended family’.
But what exactly is a blended family, and what issues can it raise?
A blended family is, as the name suggests, a blend of two families, a sort of mix of two other common family types: the traditional family (two parents and the child or children they have had together) and a single-parent family, which consists of one parent and their child or children.
Obviously, a single parent may enter a new relationship, and form a mixed family with their new partner. We then have what is commonly known as a stepfamily, with the new partner being a stepparent to the child or children.
But what if the parties then have children of their own? Then we have a blended family: a combination of a traditional family and a stepfamily.
To use the Cambridge Dictionary definition, a blended family is “a family that consists of two adults, the child or children that they have had together, and one or more children that they have had with previous partners”.
Note that the definition does not require that the two adults be married to one another – they just have to be partners.
So what are the issues that can be raised by blended families?
The issues of course arise from the fact that the step-children have ‘another parent’, with whom they don’t live (at least not all of the time): their natural mother or father.
Obviously, those children should normally spend time with both of their natural parents.
But then that means that they will not be spending that time with their half-brothers or sisters.
And this can be where the issues can arise: they may become conflicted between spending time with their blended family and spending time with their other (natural) parent.
This can be particularly hard for them if they are especially close to their step-siblings, or if the step-siblings are doing something of particular interest, that they don’t want to miss out on.
And remember, the ascertainable wishes of the children should be considered when sorting out arrangements for children – this can be especially relevant with older children.
Ideally, such issues should be dealt with by the natural parents with care and sympathy, and resolved by agreement if possible. Only after every reasonable effort has been made to resolve such issues by agreement (including the possible use of mediation, if appropriate) should the family court be asked to decide the matter.
If a blended family considers itself to be a unit then the parents may feel it appropriate to take steps to fully assimilate the step-children into the family.
This raises at least two possibilities: changing the step-children’s surname to match any new family name (where they still have the surname of the absent parent), and the more radical possibility of the step-parent adopting the step-children, thereby cutting the other natural parent out of their lives.
Either course of action will involve court proceedings (save in the unlikely event that the absent parent agrees to a change of name), and the court will, as always, be guided by whatever it considers to be best for the welfare of the children.
Generally speaking, however, the courts nowadays do not consider it as important as it once was that all children in a family share the same surname, and the increase in blended families is part of the reason for that (in 2016 the Court of Appeal commented that “the increase in blended families means that it is … no longer the universal norm for a family living together all to share the same surname”).
As to adoption, that is obviously a very serious step, and is only likely to be considered to be in the child’s best interests if their relationship with the absent parent has completely broken down.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce, child law, and arbitration. For expert advice, please contact the team.