Deciding what should happen to your children after you and your partner have split up can be difficult. You may not be able to come to an agreement regarding who your children should be with. Going to Court should be a last resort and you should explore the many different ways of reaching an agreement with your ex partner.
Family mediation is one way of settling differences during and after separation. A trained mediator will help you and your ex spouse to make arrangements for looking after your children. They will also be able to help come to an agreement concerning finances. Your mediator will be a qualified independent person who will not take sides or try to get you back together. We can help you with this process and refer you to mediation.
A Child Arrangements Order decides with whom a child is to live, spend time or otherwise have contact with and when this should take place. You can apply for a Child Arrangement Order if you and your ex partner are unable to come to an agreement with (e.g.) who the child should live with.
A Specific Issue Order relates to something specific that one parent does not agree with concerning the way the other parent is looking after the child. For example, both parents may not be able to agree on where their child should attend school.
A Prohibited Steps Order forbids a parent from doling certain things without permission from the Court. For example, either parent must receive permission from the Court before taking their child abroad.
It is an offence to remove a child under the age of 16 from the UK (even where a party has a connection with a child) without the appropriate consent. A person connected with a child may obtain the appropriate consent under the Act from:
- The child’s mother;
- The child’s father if he has Parental Responsibility;
- Any guardian of the child;
- Any Special Guardian of the child;
- Any person named in a Child Arrangements Order as a person with whom the child is to live;
- Any person who has custody of a child;
- The Court
S13(1)(i)(b) of the Children Act 1989 prohibits the removal of a child from the UK without the written consent of every person with Parental Responsibility or leave of the Court. However, a parent removing a child from one part of the UK to another is not committing an offence and the Hague Convention is not applicable.
What the Court will do?
The Court will try to help you and the other parent, to agree a positive, joint approach to looking after your children. You are both still jointly responsible for making decisions about your children and this does not stop just because your relationship may have broken down. It is usually best if you can reach your own agreements (with the help of the Court if necessary) rather than the Court having to decide for you.
There are many different arrangements that a Court can order for families. What the Court Orders will depend on the details of each case, which can be different for each family and each child. When you are talking about your case in Court, it is important to focus on what your children need. The Court will always put your children’s best interests first and do what it considers to be the best for them. This might be different from what you want.
We can also assist with Special Guardianship Orders.
A Special Guardianship Order will:
- Give the carer clear responsibility for all aspects of caring for the child or young person, and for taking decisions to do with their upbringing.
- Provide a firm foundation on which to build a lifelong permanent relationship between the carer and the child or young person.
- Preserve the basic legal link between the child or young person and their birth family.
- Be accompanied by proper access to a full range of support services including, where appropriate, financial support.
If the Local Authority has serious concerns about the safety and welfare of a child, it can apply to the Court for permission to take action to protect the child. These are called ‘Care’ or ‘Supervision’ proceedings. Placement Proceedings are issued when the Local Authority seeks permission from the Family Court to place a child for adoption. Children are only taken into Care when people are really worried that they are suffering from or likely to suffer significant harm from the way they are being looked after by their parents or carers, or whether the child is beyond the care of the parent.
What will happen if the Local Authority is worried about my children?
If the Local Authority are seriously worried about the safety or welfare of your child, they may start Care or Supervision proceedings. If it believes that your child should be adopted, it may apply for an ‘Interim Care Order’, or an ‘Interim Supervision Order’. Before they apply to the Court, the Local Authority should:
- Assess the needs of your child thoroughly.
- Assess your level of parenting and if that needs to improve; whether you can change in the time scale your child needs.
- Make a clear plan called a ‘Care Plan’ for your child.
Before making this decision, the Court will first want to establish that the Local Authority is right to have that high level of concern. The types of concern that may trigger the Local Authority to apply to the Court include:
- The Local Authority believes the child is being neglected. Neglect involves ongoing serious failure to meet a child’s basic needs. This can include:
- Not taking the child to see a doctor when they need to go.
- Not giving the child enough to eat or drink.
- Not ensuring the child receives an education.
- Not keeping the child clean.
- When the Local Authority is worried that a child has been or is likely to be abused by their parents or carers, or other people they know. Abuse includes:
- Physical abuse which is about inflicting pain or injury to a child and also includes giving a child harmful substances such as drugs, alcohol or poison.
- Sexual abuse, when a child is pressured, forced or tricked into taking part in any kind of sexual activity.
- Emotional abuse, when a parent or carer behaves in a way that is likely to seriously affect the child’s emotional development. This can include constant rejection, continual and/or severe criticism, and witnessing domestic violence.
The Courts will try to make a decision about what is going to happen to your child within 26 weeks of the application being made. All sorts of people, including the Guardian and the Local Authority, Social Worker will be trying to understand the reasons why your children may be at risk and what can be done to keep your child safe. They will carry out assessments to help decide whether your child can return home or whether he/she should stay in Care. There may also be assessments of other family members or friends who may be suitable carers, if your child does not return home.
It is the Court’s job to decide what will happen to your children, but the Judge will listen to everyone involved in the case, including you, your Solicitor, the Local Authority, the Social Worker and the Guardian, before making a decision. The Guardian’s role is to recommend what he or she thinks is best for your child based on the assessment. If the Judge is satisfied that it is safe to do so, the children will go back home. For others, the Local Authority will find them a new home.
At, Alexander Rose, we will try to help you throughout the whole process and try to answer any questions you may have. You will qualify for Legal Aid automatically, in order to obtain specialist advice through us.