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Disputes involving children

The emotional impact of divorce upon children of any age is widely documented and acknowledged. When disputes occur between parents on issues relating to their children there are many forums in which these disputes can be resolved, and it is not every case where the courts needs to become involved. Many parents will use less contentious routes such as mediation, collaborative law, or rely on the advice of family and friends to resolve their differences. In those circumstances where it is necessary to involve the courts the approach taken is governed by the principle that the child’s interests are paramount and the courts’ approach is governed by something called the Welfare Checklist and the following factors must be taken into account.

  • The ascertainable wishes and feelings of the child concerned considered in the light of his/her age and understanding.
  • His/her physical, emotional and educational needs.
  • The likely effect on him/her of any change in his/her circumstances.
  • His/her age, sex, background and any characteristics of his/hers which the Court considers relevant.
  • Any harm which he/she has suffered or is at risk of suffering.
  • How capable each of his/her parents or any other person in relation to whom the Court considers the question to be relevant is in meeting his/her needs.
  • The range of powers available to the Court under the Children Act in the proceedings in question.

No single factor within the checklist carries more weight than any other and the Court is guided by the principle that it will only make an order if it is better for the child then to make no order at all. 

The Court will also be keen to ensure that delay is not allowed to adversely effect a child’s upbringing but it is the that case Court proceedings are notoriously slow. The Court process is geared towards parents reaching an agreement on matters. It is widely considered that agreements, even if they do not satisfy the desires of each parent entirely, are better for the children then Court imposed settlements and are more likely to stand the test of time. 

In many cases but not all the Court will involve the services of an officer from the Child and Family Court Advisory Service (known as CAFCASS). This person’s role is to try to help the parties reach agreement but if that is not possible, to provide an independent report to the Court (called a CAFCASS officer’s report) dealing with matters in the Welfare Checklist and providing recommendations to the Court on the issues in dispute. The CAFCASS officer will usually see the parents and the children, and depending on the children’s ages, speak to the children to ascertain their wishes and feelings. 

The Court has the power to make a wide range of orders. The main ones are:

  • Residence order - which governs with which parent a child will live. This could include shared residence orders where the child lives with both parents.
  • Contact order - which governs the amount of time a child who does not live with a particular parent sees that parent. It can involve visits during the day, overnight stays and holiday contact.
  • Prohibited steps order - this prevents parents taking a step, which they otherwise could take as a child's parent. For example it can be used to prevent a parent taking a child abroad, or out of the care of the resident parent.
  • Specific issue order - these orders deal with particular issues in a child's life on which parents cannot agree. For example which school a child will attend, what religion they will be brought up in and medical issues.

In certain circumstances it is not just the parents of the child who can apply to the courts but grandparents and extended families, and unrelated parties.

Parental Responsibility

Child Support

Children Act Timetable (Word).doc

Please contact our Matrimonial team on:

Tel: 01825 762281

email: matrimonial@dawson-hart.co.uk

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People

Mahie Abey - Partner and Head of the Matrimonial Department
Abey qualified as barrister in 1993  having studied law at Cambridge and practised in family
 
Kerry Mersh - Senior Matrimonial Executive - Matrimonial Department
Kerry has worked in the legal profession for over 25 years. She joined Dawson Hart in 1998. She
 
Kirsty Edwards - Legal Executive - Matrimonial Department
Kirsty has worked at Dawson Hart since 2002 and was admitted as a Fellow of the Institute
 

News

7 May 2008
Cohabiting partners still do not have similar rights to married couples...
 
19 March 2008

The much-publicised divorce has led to a settlement in favour of Ms Mills of £24.3m...

Testimonials

“We were given a breakdown of the likely costs at the outset and these proved to be completely accurate. I was left in no doubt as to the time process which was all clearly explained at our initial meeting. There were no surprises throughout the process which made it much easier for me to understand”

April 2008

Glossary

ADR:

An alternative to litigation to resolving disputes

Acknowledgement of Service Form:

Document completed by the Respondent to a divorce indicating whether the divorce is defended or not.

Affidavit in support of Petition:

Document filed by the Petitioner to seek Decree Nisi

Ancillary Relief:

The financial process that is linked to divorce

C1:

Form used to commence Children Act proceedings

C2:

Form used to make an application in already existing Children Act proceedings.

CAFCASS:

Child and Family Court Advisory Service.  A Government agency which assists the parties and Court in disputes involving the children.

CAFCASS Report:

Report prepared by a CAFCASS Officer (by order of the Court) in some cases where parents are in dispute about children issues.

Children Act 1989:

Main piece of legislation dealing with children issues.

Chronology (Finances):

Document filed 14 days before the FDA setting out the history of the relationship and proceedings (in brief).

Civil Partnership:

A legal status available to same sex couples.

Cohabitation Agreement:

Agreement entered into before parties cohabit setting out how assets should be divided on separation.

Collaborative Law:

An alternative system of resolving family issues where the parties agree not to go to Court and where negotiation takes place in joint meetings between the parties and their lawyers.

Common Law Husband/Wife:

A legal fallacy.  The concept does not exist and provides no protection to cohabitees.

Conciliation Appointment:

A Court appointment within Children Act proceedings at which a CAFCASS Officer is present.

Consent Order:

Court Order enshrining agreement reached between the parties

Contact Order:

This is an Order which governs the amount of time a child who does not live with a particular parent sees that parent.

Costs Order:

Order made that one side pays the other side’s costs, or part of them.

CSA:

Child Support Agency. Government agency set up to deal with child maintenance payments.

Decree Absolute:

Final decree of divorce

Directions:

Orders made by the Court to provide guidance to the parties on the conduct of the case.

Directions for Trial (Special Procedure):

Request made in writing for the Court to consider whether Decree Nisi can be made in an undefended divorce.

Divorce Petition:

Document filed at Court to start the divorce process

FDA:

First hearing after issue of financial proceedings, usually used to obtain Directions from the Court.

FDR:

Second hearing in financial proceedings. This is Without Prejudice and the Judge will give a view of the possible outcome.

Final Hearing:

The hearing at which the Court will impose a settlement on the parties.

Form A:

Form filed to start financial proceedings

Form E:

A financial affidavit which is used to provide disclosure in the Court process (and in voluntary disclosure)

Form G:

Form filed 14 days before the FDA setting out whether the parties can use the FDA as an FDR.

Form H:

Estimate of costs form in respect of finance proceedings.

Form H1:

Estimate of costs form produced before the final hearing on financial proceedings.

Freezing Injunction:

A Court order freezing the assets of a party to prevent those assets being dissipated or moved abroad.

Maintenance Order (or Periodical Payments):

An order for the payment of money on a regular basis between one party and another for the benefit of the receiving party or the children.

Matrimonial Causes Act 1973:

Main piece of legislation dealing with divorce and financial issues on divorce.

Mediation:

An alternative method of resolving disputes where the parties reach their own agreement with the guidance of a trained mediator.

Open Proposals:

Proposals made which can be considered by the Court at trial.

Parental Responsibility:

A legal concept governing the rights, duties and obligations a parent has in respect of a child.

Pension Sharing Order:

Order dividing a pension either in full or in part.

Petitioner:

Person who starts the divorce

Pre-Nuptial Agreement:

An agreement entered into before marriage dealing with the way finances should be dealt with on separation.

Prohibited Steps Order:

This Order prevents parents taking a step, which they otherwise could take as a child’s parent. For example it can be used to prevent a parent taking a child abroad.

Property Adjustment Order:

Order for transfer of property between one party and another.

Questionnaire (Finances):

Document filed 14 days before the FDA seeking further information from the other party based on the Statement of Issues and omissions in disclosure to date.

Residence Order:

This Order governs with which parent a child will live.

Resolution:

Formerly known as the Solicitors Family Law Association. This is a professional organisation to which some 5,000 family lawyers belong.  It promotes a non confrontational approach to family law.

Respondent:

Person on receiving end of the divorce petition or any other Court process within family proceedings.

S41 Certificate:

Certificate supplied by the Court prior to Decree Nisi certifying that the Court is happy that the parties have considered the children on divorce.(This is a formal part of the divorce process and not the same as the Court making an order regarding the residence or otherwise of the children when a dispute occurs.)

Separation Agreement:

Agreement entered into on separation setting out how assets (and other matters) are to be dealt with.

Specific Issue Order:

These Orders deal with particular issues in a child’s life on which parents cannot agree. For example which school a child will attend.

Statement of Arrangements for Children:

Form filed at Court with the Divorce Petition to inform the Court that the parties are thinking about the children on divorce.

Statement of Issues (Finances):

Document filed 14 days before the FDA setting out the issues between the parties.

Statement with regard to reconciliation:

Form filed with divorce Petition indicating whether the solicitor has given advice on reconciliation.

Without Prejudice:

Material which is Without Prejudice cannot be referred to in open proceedings.

Without Prejudice Proposals:

Proposals which can be considered by the parties and the Court at Without Prejudice Hearings eg FDR but not at trial.

Witness Statement:

Statement of evidence filed by a party or a witness within proceedings.

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