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How are children’s living arrangements decided by the courts in a divorce?

When a couple separates, a really important issue moving forward will be the care of any children. This is not dealt with as part of the main divorce process, but separately, in the same way that the separation of finances is a separate process. Dealing with this issue is understandably emotional and understanding the process can make it feel more manageable.

Agreement

The first, and best, way to deal with the childrens living arrangements following a divorce is by agreement. The court do not have to become involved with the matters involving children unless an agreement cannot be reached. If the parents can agree the living arrangements, how much time the children will spend with each parent and how the finances for the children will work, then the court does not need to become involved.

One way to come to an agreement is to create a parenting plan between the parties that clarifies the arrangements and resolves any practical issues. Mediation is also a recourse for parents wanting to reach an agreement for their childrens living arrangements and can be an opportunity for both parents to express their views before coming to an agreement together with guidance from the mediator. Once the mediation process is complete, you will receive a document setting out the agreement. It is important to be aware that this document is not legally binding. Mediation, although a positive step to reaching an agreement, is also a requirement before beginning court proceedings, unless it is a case involving domestic abuse. The court requires a (mediation information assessment meeting) MIAM certificate in order to issue childrens proceedings.

Court proceedings

If an agreement cannot be reached between the parents, then a parent can apply to the court for a child arrangement order under Section 8 of the Children Act 1989. A child arrangements order can regulate who a child should:

  • Live with
  • Spend time with
  • Have contact with

The key principle that governs court proceedings involving children is the no order principle. This means that the court will not make an order unless they are sure that it will be better for the child to make the order than not. Several categories of people can apply to the court for a child arrangements order including, but not limited to, the childs:

  • Parent
  • Guardian
  • Step-parent
  • Anyone with parental responsibility
  • A person who the child lives with due to a current child arrangements order
  • Party to a marriage, which the child is a child of the family

The first hearing in the process is called a first hearing dispute resolution appointment (FHDRA). This is where the Children and Family Court Advisory Support Service (Cafcass) carry out safeguarding checks to ensure there are no risks of harm to the child. They then provide a safeguarding letter to the court prior to the FHDRA taking place. The judge will hear submissions and then decide if a Section 7 report is required, which focusses on the welfare of the child including their wishes and feelings, dependant of their age.

If an agreement is reached at the FHDRA, the judge can order for a consent order to be drafted to conclude the proceedings. This will be drafted by the parties representatives, and then sent to the judge for their approval. If agreement is not reached at the FHDRA, the judge can list the case for a Dispute Resolution Appointment (DRA). Finally, there can be a final hearing where oral evidence is given by the parties. If the decision is made at the final hearing stage, the court will draft the order and serve on the parties.

A child arrangement order that regulates a childs living arrangements automatically ends when the child reaches the age of 18. Another point to highlight is that the court will always want to ensure children have a relationship with both parents unless it can be shown that this would adversely affect the childs welfare.

The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.

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