Making Arrangements For Children
Parents who separate have to address a range of issues concerning their child. It is enormously helpful to the child, and to the child’s relationships with both parents, if the parents are able to agree. Of course, this is frequently a difficult thing to do in the emotionally charged atmosphere of divorce and separation. It is not always possible to reach a workable compromise, but it is particularly important, in the interests of the child, that both parents try to do so.
It is not uncommon for a parent to wish to ‘punish’ the other parent by damaging the relationship between the child and the other parent, by preventing contact with the other parent, or by criticising the other parent during contact. It is vital that the adults recognise that while it is possible to use the child to hurt the other parent, this will always and necessarily hurt the child as well. No matter how difficult the relationship between the parents may have become, the mother and father will share their roles as parents for the rest of their lives, and if they are to respect and address the needs of the child they will have to work together.
This article deals primarily with the legal principles applied to making arrangements for children other than those involving money; if you would like to know more about the legal principles applied to making financial arrangements for children, have a look at the article on Financial Provision for Children. If you would like to know more about how court orders concerning children are obtained, have a look at the article on Obtaining Children Orders — The Process.
Parental Responsibility
Court Involvement
Welfare of the Child
Residence
Shared Residence
Keeping Children Together
Children’s Views
Contact Orders
Importance of Maintaining Contact
How Much Contact?
Opposition to Contact
Contact with a Parent’s New Partner
Stopping Contact
Leaving the Country
Changing a child’s Name
Schools
Putting the child’s Interests First
Parental Responsibility
Parental responsibility involves having the right to make, or at least participate in, decisions about the child. Parental responsibility does not come to an end when a parent stops living with the child; it ends only when the child becomes an adult.
Married parents share parental responsibility for the child. Unmarried fathers do not automatically have such responsibility. Until 1 December 2003 unmarried fathers could only acquire parental responsibility with the mother’s agreement or by court order. An unmarried father who is named as the father on the child’s birth certificate after 1 December 2003 (but not before that date) now acquires parental responsibility automatically. The court is very likely to grant parental responsibility to an unmarried father who can show that he is committed to his relationship with the child, is genuinely attached to the child, and is not motivated by a desire to disrupt the mother’s life.
Although parental responsibility does not entitle a parent who is not living with the child to interfere on a daily basis with more trivial day-to-day questions, for example how much television the child is allowed to watch, or how often they eat chocolate, parents who share parental responsibility, whether separated or not, share the obligation and the right to make significant decisions concerning the child, such as where the child will go to school, or which medical treatment may be best for the child. This means that separated parents not only have to work hard to reach an initial agreement concerning the child, they must go on working together to reach agreements on each new issue which arises.
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Court Involvement
If possible the court will avoid making orders concerning arrangements for a child, and parents are encouraged to reach agreement without involving the courts. However, if the parents cannot reach agreement, whether on their own, through mediation, or following the advice of their solicitors, the unresolved issue will be considered by the court.
In London, at the Principal Registry, the first stage involves a hearing called a Conciliation Appointment, at court, at which the District Judge and both parents are joined by an officer from CAFCASS (Children and Family Court Advisory and Support Service) to discuss a way forward. If the child is 8or over the child will also attend to be seen privately by the CAFCASS officer. The practice differs at other courts around the country.
If the Conciliation Appointment does not result in the parents reaching an agreement, the court will usually then ask both parents to submit statements concerning the child, and instruct a different CAFCASS officer to prepare a report. The reporting officer will arrange to meet both parents separately. Depending on the age of the child, the officer may, depending on the circumstances and the directions of the court, also approach relevant third parties, such as the child’s school or doctor, or other people with a significant caring role, such as a nanny, or new partners of either parent.
The report will be considered by the court at the full hearing, and will usually be given considerable weight. The judge is entitled to depart significantly from the recommendations of the report, but has to give clear reasons for doing so, and first has to give the reporting officer the opportunity to explain why he or she did not favour the judge’s approach. Both parents will be required to attend court for the full hearing to give evidence and be cross-examined, but the child will not be required to attend.
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Welfare of the Child
If the courts are required to make decisions about a child, the paramount consideration will be the welfare of the child. The court has a checklist of things which must be taken into account when considering a child’s welfare. The court must have regard to the wishes and feelings of the child, bearing in mind the child’s age and understanding. The court will try to assess the particular characteristics and needs of the child, and the likely effect on the child of any change in circumstances. The court will consider any harm the child has suffered or is at risk of suffering. The court will try to work out the best way of meeting the child’s needs, and how capable each of the parents, and any other relevant person, are of doing so. The court will only make an order if it is necessary to do so in the interests of the child.
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Residence
The first decision concerning the child is likely to be about which parent will be looking after the child. In many cases the parents will be able to decide this between themselves. Usually one of the parents very obviously has the role of primary carer for the child, and the other parent accepts that this should continue. However, if the parents cannot agree about residence, the court will make a decision, applying the basic principles under which the welfare of the child is the paramount consideration.
The court will ask what the child’s day-to-day needs are, who is best able to meet the child’s day-to-day needs and what the child’s domestic routine has been until this point. The court is likely to place great emphasis on continuity, and is unlikely to make any dramatic changes to a child’s routine unless there is something demonstrably wrong with the current arrangements.
Recently, the Court of Appeal re-confirmed that there is no legal bias in favour of mothers, but nonetheless many fathers perceive such a bias. It may be that the emphasis on continuity favours the mother, because it is still normally the case that the mother has taken the role of primary carer, at least in the early years of the child’s life. Nonetheless, the legal position is that any decision about where the child is to live, whether by the parents or by the courts, should be based on the needs of the child, rather than any sense that one or other of the parents ‘deserves’ to have day-to-day care for the child.
The decision is sometimes a finely balanced one; usually both parents would be able to provide the child with good care. A residence order which specifies that the child will be living with one of the parents rather than the other does not mean that the non-resident parents is any way a ‘bad’ parent, merely that having taken all the circumstances into account, it is better for the child to be with the other parent.
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Shared Residence
It is possible to make an order for ‘shared residence’, providing that the child will have homes with both parents. This has the great advantage that it gives both parents the feeling that they have equal status as parents, and may prevent children from feeling that they are being torn between their parents. However, shared residence is not always practical; it usually relies on both parents living in suitably large accommodation, sufficiently close to each other, and to the child’s school, for the child to be able to move between the two homes without any inconvenience, and, perhaps more importantly shared residence requires a degree of trust and flexibility on the part of the parents which is often lacking following a relationship breakdown. Even if it is practical, shared residence may not always suit the child; some children need the security of one, stable home, perhaps particularly so at a time when many other aspects of their life are in upheaval. The court will only make an order for shared residence if such an order in fact reflects the realities of the practical arrangements for the child; an order for shared residence is not to be used merely to make one parent feel better.
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Keeping Children Together
Normally, it will be in the best interests of the children to stay together, but very occasionally this is not the case. Because each child is to be considered as an individual, with individual needs, the best interests of each child may sometimes lead to separation. Separating children is rare, and is most likely to happen when an older child has made a very clear decision that they would rather live with one parent, while the court or the parents believe that younger children should remain with the other parent.
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Children’s Views
The court takes the views of the child into account, but will also take into account the child’s age and understanding. As important as it is to find out what the child’s views are, the child may be placed in a very unpleasant position if the child feels they are being asked to choose between their parents, and that the responsibility for the decision rests with them. Both parents should bear in mind that in most cases the child does not wish to choose between them, and may quite truthfully be telling both parents that he or she wishes to stay with them. In expressing his or her views, the child may emphasise certain things and minimise others in response to the emotions of the adults concerned, trying, for example, to reassure an unhappy parent and make them feel better. Sometimes a child will express views which are not in fact the child’s own, with the aim of making one parent feel more loved or more secure. More common, perhaps, is the situation in which the child expresses different views at different times because they are confused about the very complicated and difficult choices they are being asked to make. The court will often try to find out what the child’s real views are by asking the reporting officer to spend time with the child. The officer will report to the court on what views the child expressed, how clearly the child expressed those views, and the extent to which the views expressed seemed to have been influenced by either of the parents. Although shared residence is a possibility, usually the final order will grant residence to one parent, who is known as the parent with care.
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Contact Orders
The next big issue is that of contact between the child and the ‘non-resident’ parent. Where parents are unable to agree on contact between the child and the non-resident parent, the court may make a contact order in respect of the child, which will set out when the non-resident parent is to see the child. The order will sometimes describe the time, duration and type of contact in considerable detail, but more often will indicate how frequently the child should see the other parent without descending into detail, with the aim of encouraging both parents to be flexible in practice. It may, for example, suggest that the non-resident parent should see the child one evening a week, and also have the child to stay with them every other weekend and for at least three weeks during school holidays. Such an arrangement is clear, but not precise, leaving the parents to work out between themselves what will work best in practice. Although parents may still find it hard to co operate over this, and there are inevitable points of conflict in any such arrangement, it often helps to have a basic framework within which to work. The more that parents consult each other over the mechanics of contact, the more likely it is that contact will in fact go smoothly.
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Importance of Maintaining Contact
There are no fixed rules concerning contact, but, as a general principle, the court will presume that it is in a child’s best interests to have regular contact with the non-resident parent. There is considerable evidence that children who retain a relationship with both parents cope better with the effects of the divorce or separation than children who effectively ‘lose’ one of the parents. The perceived, and even real, inadequacies of the non-resident parent rarely justify ending contact; it seems that children who are close to both their parents, notwithstanding inadequacies, find it easier to develop good relationships with others.
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How Much Contact?
There is no assumption that it is in the child’s best interests to share their time equally between the parents, and this is rare, even in shared residence cases. There are likely to be practical problems to be overcome in any contact arrangements which will affect how long the child can or should spend having contact with the non-resident parent. Unless the child is very young, the child will have their own independent life, which has to be given equal weight with the lives of the adults. Both in seeking to reach agreement on contact and in day-to-day management of contact it is unhelpful for either side to be dogmatic about what is and is not possible or in the best interests of the child. The child’s interests are likely to be best served by parents who, rather than fighting over when and for how long contact should take place, concentrate on making contact a regular and positive experience for the child.
Whatever is agreed, circumstances will, in any event, change over time, requiring some modification of the agreed pattern of contact. Responding to such changes in circumstances requires sensitivity and flexibility from both parents. For example, as a child gets older, he or she will develop a more active social life of their own, which is likely to mean that both parents see less of the child. Depending on the circumstances, the parent with care may have to be prepared to give up a little more of their time with the child, recognising that the contact time with the non-resident parent is particularly important to both child and parent because relatively scarce. Equally, the non-resident parent may have to recognise that insisting on the letter of the contact arrangements may make the life of the child, and of the parent with care, unnecessarily crowded and stressful.
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Opposition to Contact
There are, of course, some, very limited, exceptions to the general principle that contact with both parents is good for children, particularly the risk of violence towards the child, or a serious risk of abduction [link to child abduction]. Although the court is likely to treat domestic violence towards the parent caring for the child as a very significant factor, domestic violence does not necessarily mean that the non-resident parent will lose all contact with the child. Where there has been domestic violence towards the parent with care, the court is unlikely to require the parent with care to have direct contact with the non-resident parent, and may instead order contact at a contact centre. Where the parent with care is concerned about abduction, the court may require the non-residence parent to surrender their passport, or to give undertakings, in order to maintain contact while minimising any risk of abduction. In certain, exceptional, circumstances, the court may consider that it is not in the child’s best interests to have a direct contact with the non-resident parent, and will instead order indirect contact, in the form of regular letters and cards.
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Contact with a Parent’s New Partner
Many parents who accept that the child should retain contact with both parents are uncomfortable about, indeed very opposed to, the child having any contact with a new partner, particularly if the new partner was a factor in the breakdown of the marriage. These are sensitive issues, not only for the parent left behind, but also the child, who may feel extremely hostile to any new partner.
Ideally, before introducing the child to the new partner, the non-resident parent will use contact time with the child to re establish the relationship between parent and child on what will, necessarily, be a new basis. Indeed, both parents should bear in mind the benefits of introducing the child to a new partner only gradually.
However, someone who is important in the life of either parent will necessarily have an impact on the child, and there is no practical way in the long-term to prevent contact with a parent’s new partner, and, from the child’s perspective, usually no good reason to do so. The lives of both parents are bound to change post-separation, and in the long-term both parents are likely to introduce new people into the life of the child. The child will have to develop a relationship with any long-term partner of a parent, and it is clearly better for the child if that relationship is a positive one.
It is not unusual for a parent, particularly a non-resident parent, to fear that the other parent’s long-term partner will in some way harm the relationship between the child and the parent. A sense of being torn apart or of feeling guilty for liking a new partner are much more likely to damage the child’s relationship with all the adults, including the anxious parent, than the development of an independent relationship with a parent’s new partner. No matter how positive the relationship a child may develop with a parent’s new partner, the child will retain a strong sense that his or her relationship with both parents is very different, and much more important. The child will be happier if the sensitivities of the adults concerned do not prevent him or her from establishing working relationships with all the people in his or her life.
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Stopping Contact
Even well-designed and sensible contact agreements break down sometimes, and when contact orders are made following a prolonged and bitter legal battle very small problems can easily lead to a breakdown in the arrangements for contact. Sometimes contact breaks down because of genuine concerns relating to the child’s welfare, but it is not uncommon for contact with the child to be used by the parent with care as a means of punishing the non-resident parent. The individual father or mother may be attracted to the idea of cutting off all contact with their former partner, but from the child’s perspective this is a very dangerous, and usually unworkable, option.
Only rarely can a parent who denies contact show that it is not in the child’s best interests for contact to take place. In the overwhelming number of cases, the court will require the parent with care to restart contact. A parent who persists in refusing to allow the non-resident parent contact with the child, in the face of the court orders, may face court sanctions. The ultimate sanction is to transfer the child’s residence from one parent to another. This is only very rarely done, even in those cases in which it is at all practical, as the test remains the best interests of the child, and only very rarely will the benefit of restoring contact outweigh the considerable trauma to the child of moving home. However, there are a number of other sanctions, including, in the most extreme cases, imprisonment, and the government is considering the introduction of certain others, such as removal of the driving licence of the parent with care (see "Enforcement of Contact Orders: a new era?"). It is not possible to suspend child support in order to force the parent with care to restart contact.
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Leaving the Country
A decision by the parent with care to leave the country and set up home abroad is very likely to meet serious resistance from the non-resident parent. In many cases such a move will necessarily damage the relationship between the child and the non-resident parent. For that reason, a parent who shares parental responsibility with another parent, even if they are the parent with care, cannot remove the child from any jurisdiction without first obtaining the permission of the other parent, unless they obtain the permission of the court instead. A parent who removes the child from the country without obtaining such permission as ‘abducted’ the child, even if the child normally lives with them [link to child abduction]. However, where a move abroad is motivated by a genuine desire to improve the life of the parent with care and the child, and is practical, the court will give very serious consideration to granting permission. The court will be particularly concerned with the impact on the parent with care of a refusal to grant permission, and the impact on the child which is likely to flow from that. The court will, when granting permission, try to ensure that contact with the non-resident parent continues, although such contact will necessarily be more difficult and less frequent. Until an unmarried father acquires parental responsibility he cannot prevent the mother from removing the child from the country, and if an unmarried father fears that the mother may remove the child, he should apply to the court for parental responsibility immediately. The court may then take steps to prevent such a removal until a decision has been reached.
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Changing a Child’s Name
A parent with care cannot change the name used by the child without first obtaining the permission of the non-resident parent, if they share parental responsibility. The issue of what a child is called is a sensitive one. A change may be made by the parent with care for good practical reasons or because it seems to the parent with care that the child’s interests are best served by such a change, but there is always the strong risk that the change will be strongly opposed by the non-resident parent, particularly if the change involves dropping a name shared with the non-resident parent. A change of name will often be seen as an attempt to distance the child from the non-resident parent. The court is very unlikely to permit a change of name, because the name is a significant part of the child’s identity, and use of the name on the birth certificate reinforces that sense of identity.
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Schools
Decisions about which school to send the child to should be made jointly by parents who share parental responsibility. Again, if the parents cannot agree, the court may have to make the decision on behalf of the parents. The court may order a non-resident parent to pay school fees, if private education is considered to be in the best interests of the child.
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Putting the Child’s Interests First
As difficult as it will often be, the key to making arrangements for the child is concentration on the child’s real needs, rather than projecting onto the child’s relationship with the adults the anxieties and problems being experienced by the adults in their relationship with each other. This means, among other things, not engaging in detailed discussions with the child about the failings and misdeeds of the other parent, and not using the child as a means of communicating to the other parent dissatisfaction with financial, emotional or practical arrangements. In reaching, and implementing, arrangements for the child both parents have to stay open to the need, which will never go away, to co operate with each other, and sometimes to compromise, in order to protect the child. Although the end of a loving relationship between the parents creates a very difficult situation for the child, the separation of the parents need not, and should not, prevent the child from having independent, loving relationships with both parents, an outcome which is clearly in the child’s best interests.
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