Children Issues & Support
“Kim Fellowes has a stellar reputation for child support matters”
Ensuring your child’s wellbeing and happiness is important to all parents, particularly in situations where you have separated and need to make clear arrangements for the children to spend time with each parent. We offer advice for all issues relating to children.
Children issues: living arrangements, relocation abduction, adoption
In most divorce cases, the majority of disagreements occur when it comes to making decisions about children and finance.
If there are children involved when a couple separate, the main priority is to agree where they will live and how their time is to be shared between their parents. We understand that it can be difficult to reach agreement, and we deal with this sensitively, avoiding the creation of more upset and acrimony and making sure that the children’s welfare remains the priority at all times.
Our team has considerable experience of advising parents on all matters relating to children, including child arrangements (where children live and how much time they spend with each parent – formerly known as residence and contact), child relocation (where one parent wishes to move out of the area with the children, whether elsewhere in the UK or abroad), adoption and abduction. Many members of our team are children specialists, accredited by the national family law organisation, Resolution.
Agreeing how your children will be looked after financially is crucial. We will help you achieve a solution, by helping you to arrive at an agreed family based arrangement for financial support, or alternatively by advising on assessments undertaken by the Child Maintenance Service (formerly known as CSA or Child Support Agency assessments), working through the process to make sure that payments are correctly assessed and fair.
We provide advice and representation to both the parent with care and the non-resident parent in relation to all issues of child support. Silk partner, Kim Fellowes, is a nationally recognised child support specialist, and advises government on issues relating to reform of the child support system.
Can my ex partner stop me from seeing my child/the children?
The presumption is that it is in the child’s interest to spend time with both parents. Most parents share ‘Parental Responsibility’ – the rights, duties and responsibilities that come with being a parent. No parent has greater rights, or a greater say in a child’s upbringing than the other, and therefore parents should not act unilaterally to dictate arrangements to the other. However, the law does not extend to make it unlawful for one parent to stop the other parent from seeing their child. In these circumstances, if you’re not being allowed to spend time with your child and you cannot agree it through discussion or mediation, then as a last resort you can make an application to the court for a “Child Arrangements Order”.
How can I gain access to my child?
It is usually considered to be best for parents to make their own arrangements, rather than have those arrangements dictated by a court. Sometimes parents find it difficult to communicate effectively, or see each other’s point of view, in which case mediation can offer an effective means to help separated parents to overcome those obstacles and reach agreement as to their children’s future living arrangements.
However, if mediation does not go ahead, or the process does not lead to agreement, you are entitled to make an application to the court for a Child Arrangements Order. The court will consider all of the evidence and will then impose living arrangements for the children which the court believes to be in the best interests of your child.
Legal proceedings can be acrimonious, the outcome uncertain and legal fees can be high. We therefore try to look at all options to resolve these types of disputes without involving the court process, wherever possible.
Can I change my child’s name or change my child’s school?
Both a change of name and a change of school require the consent of all parties with Parental Responsibility. Mothers and fathers (provided they are named as the father on the child’s birth certificate) share Parental Responsibility for that child. If you don’t have the consent of the other parent, you are not allowed to take any such steps, and you would need to make an application to the court for a Specific Issue Order.
You also need to be aware that if the other parent believes that you are about to change schools or your child’s surname, they can apply for an order forbidding you from doing so. This is called a Prohibited Steps Order.
Can I make my ex partner see our child/children?
Save for very limited exceptions, spending time with (previously known as ‘contact’ with) each parent is the child’s right. But you cannot compel someone by law to spend time with their child if they don’t want to. However, even if the other parent chooses not to see their child, they are still under a legal obligation to pay maintenance for that child, and would share Parental Responsibility.
My child doesn’t want to see their mum/dad - does he/she have to?
This will depend on all the circumstances of the case. A child’s wishes and feelings will be one part of the consideration, but not necessarily the overriding factor. For example, the wishes of a 4 year old child will be given significantly less weight than a mature 14 or 15 year old. If a child refuses to see one parent, that parent can make an application to the court for a Child Arrangements Order. A court will need to get to the bottom of why the child is apparently unwilling to see the other parent and will usually consider how to promote and improve that relationship. However, any order made will be based upon what the court believes to be in the best interests of the child, which will include the wishes and feelings of the child (considered in the light of that child’s age and understanding) as well as other factors which may have as much, if not more, significance.
What age will the court take a child’s view into account?
All children are individuals. There can be some mature and thoughtful young children as well as immature and irresponsible older children. The law requires the court to have regard to a child’s age and understanding, when considering that child’s wishes and feelings. Courts are only too aware that children can be influenced by the wishes of each parent, particularly when one or both parents speak about the other parent in negative terms. As a very general rule, the court will give greater weight to a child’s opinion from secondary school age (around 11-12), although this will also depend on the child’s emotional intelligence. Even up to the age of 16, there may still be grounds to challenge this.
More information: Will my child’s views be listened to by the family court?
I want to move out of the area, can my child’s other parents stop me?
If a child is of school age and a parent with care of the child wishes to move house, but which would also require moving the child’s school, then the consent of everyone with Parental Responsibility (usually both parents) is required.
Also, if there is a care arrangement in place that would be altered by the move due to the geographical distance between the parents, then you would need the agreement of other party. Were you to take steps to move out of the area without securing the consent of the other parent, the other parent may apply for a Prohibited Steps Order to prevent the move from going ahead until there can be a proper consideration of whether the move would be in the child’s best interests. The court may, were it to believe it to be in the child’s best interests, make an order that the child lives with the other parent. The court would need to consider the impact of any move on the child, including the impact of the quality of time the child spends with each parent as well as extended family members, the reason for the proposed move (is it for genuine reasons or driven by a desire to place distance between you and the other parent) and support networks.
What should I do if I believe my ex is turning our child against me?
The issue of parental alienation and the process to be followed where parental alienation is suspected is covered in this blog post: Parental alienation – updated blog for 2021.
The harm that can be done to children who are subject to parental alienation should not be underestimated. Parents can alienate children for a variety of reasons. Sometimes it is deliberate, whereas in some cases it is done without the parent even realising what they are doing. However, the impact on children can be devastating. Left unchecked it can cause the child to refuse to see one parent. Courts are increasingly aware of the serious harm that parental alienation can have and can exercise power to protect children from the harm caused by the abusive parent, which could mean making an order transferring the child’s day to day residence from one parent to the other. Such cases can be difficult, however, as parental alienation can be difficult to prove. Therefore legal advice should be sought.
How can I secure 50% time (or more time) with the children?
Equal shared care is often sought by one parent. A Shared Care Arrangement that divides the time a child spends between parents is becoming more common. However, consideration needs to be given as to how the arrangement will work in practice. Good communication is required between the parents for a child to live their life and move seamlessly between two homes.
This blog on managing co-parenting relationships provides some helpful tips.
Whilst it is the case that there is an increased tendency for courts to consider shared care, that does not necessarily mean that care will be shared equally. The court will always make its decision about future living arrangements based on what is in the child’s best interests.
Shared care means that the child will spend time with each parent and the days and times can be specified within an order made by the court if the parents cannot agree. A joint ‘live with’ order does not necessarily mean that there is an equal division of time, rather its purpose is often to reinforce that both parents of the children have equal status as parents even if the time is not split 50/50.
Will I be entitled to alternate Christmases with the children?
The festive season can often exacerbate family disputes, as parents wish to maximise the amount of time they spend with the children. It is important that all decisions made about how the children’s time is divided over Christmas has their best interests at heart.
Some parents choose to divide the school holidays in half, some choose to split Christmas day itself, whilst others opt to take turns each year. There is no one size that fits all. Parents are urged to come to their own agreement where possible. However, it is possible to apply to the court to determine where the children spend Christmas. In the event of a dispute, there is no automatic rule requiring alternate Christmases, and if the matter falls to be decided by the court, the court will make a decision based upon what is in the children’s best interests.
It is important to try and make arrangements as far in advance as possible and ensure the children’s best interests are the main consideration. If the children are old enough to express their opinion, their views should be taken into account.
Can my ex stop me from taking the children on holiday abroad?
Many parents are anxious about their child going on holiday abroad, which can be a common source of dispute between separated parents.
If there is a Child Arrangements Order in place which provides that the children live with you, then you can take the children abroad, out of the jurisdiction of England and Wales, for a period of up to 4 weeks at a time without requiring the other parent’s consent.
In the absence of a Child Arrangements Order, you will need either the written consent of anyone with Parental responsibility or an order of the court to take the children on holiday overseas.
If you take the child out of the jurisdiction for over four weeks (in the event that there is an order stating that the child lives with you), or otherwise without the other parent’s consent, you will be committing an offence of child abduction, and will be liable to arrest upon your return to the UK.
Whether the other parent would actually succeed in preventing the holiday will very much depend on the circumstances of the case. For example, a pre-booked holiday to a safe European destination during school holidays would require a very good reason for it not to go ahead. Whereas a holiday booked last minute during school term time just prior to exams, leading to missed school and severe disruption, may lead to the court taking the view that the holiday should not go ahead – at least with the children. As ever, it the welfare of the children which determines these arrangements. Communication between parents is key so as to avoid the children being disappointed and one parent feeling aggrieved.
My ex keeps breaching the court order/agreement we have, what can I do about this?
Unfortunately, child arrangements orders are not always complied with. When this happens, it often leaves a parent asking what action they can take.
Court orders carry a very clear warning, known as a “warning notice”, designed to ensure that parents are fully aware that orders must be adhered to. If one party intentionally refuses to follow an order and there is no reasonable excuse for the order not to be complied with, steps can be taken to enforce the order and the Court has the power to reprimand the offending parent or vary the order.
It is a contempt of court to breach a Child Arrangements Order. The punishments available to the Court largely depend on the nature and frequency of the breaches. They include a parent being fined, ordered to undertake unpaid work, or (in the most serious of cases) sent to prison. In certain cases courts have ordered that a child should live with the other parent, where the relationship between that parent and the child is being deliberately damaged as a result of the refusal of the other parent to obey the terms of the order.
In the event that the other parent is breaching the order, it is possible to apply to the court to enforce the order. The defaulting parent will need to explain why they have breached the order, and the court will then go on to deal with the defaulting parent, and make an enforcement order as it deems appropriate.
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