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Children & Divorce


Agreeing the arrangements for the children of a divorcing couple can often lead to significant stress, emotion and tension between the parties. However, it is vital to the well-being of the children that the arrangements have minimal impact on them; and their lives (including where they live and go to school) are disrupted as little as possible.

The law is based upon the rights of the children rather than those of the parents. If the parents are unable to agree arrangements between themselves, or through their respective solicitors, then an application will need to be made to the Court.

The Court will have a brief first hearing to decide how the application will move forward and the parents may be able to discuss the problem with a CAFCASS officer (Children and Family Court Advisory and Support Service). The Judge will make Orders about how the case will proceed and a CAFCASS officer may be requested to prepare a report to assist the Court with making their decision.

The matter will then proceed to a final hearing at which both parents will have to attend. Children will not usually attend unless directed so by the Court.

The Court will hear the applications made by the parents. An application to the Court can also be made by grandparents (or others) in specific cases. The Court itself can make Orders without anyone making an application.

Orders which can be made about children under the age of 16 years include-:

  • a residence order which states where a child should live

 

  • a contact order which regulates sleepovers, visits, telephone calls and holidays by a parent not having a residence order

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  • a specific issue order if parents cannot agree a specific aspect of their children’s upbringing

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  • a prohibited steps order is used to stop one parent doing something concerning the child to which the other parent objects.

The Court can also make a parental responsibility order.

Parental Responsibility

Parental responsibility is defined as "all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child and his property". A person with parental responsibility cannot surrender or transfer it unless the child is adopted.

Each parent has parental responsibility where they were married at the time of the child’s birth. Where the parents are unmarried the mother has parental responsibility and where the child was born after 1st December 2003 the father automatically acquires parental responsibility when he is named on the birth certificate. If the child was born before this date the father only acquires parental responsibility by-:

  • marrying the child’s mother

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  • applying to the Court for a parental responsibility order

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  • making a parental responsibility agreement with the mother

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  • obtaining a residence order

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  • being appointed the child’s guardian


Certain decisions can only be taken by those with parental responsibility. These include decisions relating to medical treatment. The consent of all those with parental responsibility is required to-:
  • change a child’s name

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  • take a child out of the country

    • Where those responsible cannot agree on a course of action the Court may be required to intervene.

 


Child Maintenance


Child support or maintenance is now the responsibility of the Child Maintenance and Enforcement Commission (CMEC), previously the Child Support Agency (CSA). The Courts no longer have the power to order the payment of child support.

Child support should ideally have been agreed together with spousal maintenance in an overall financial settlement. Agreeing the amount between the parties can avoid the involvement of CMEC.

It is difficult to estimate the amount of child maintenance that may be received from the absent party as this will depend upon, amongst other factors-:
  • income of both parties

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  • assets including any savings

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  • age of the child

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  • pension contributions

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  • any special needs of the child


Early assistance from an experienced family solicitor should be sought to ascertain the best way forward, as decisions made with regards to child support can have long term implications for your children.


Grandparents Rights


Grandparents often lose contact with their grandchildren through no fault of their own. The children may move to another area or the animosity between the estranged parties may make contact difficult if not impossible.

The legal process does not make it easy for grandparents to apply for contact. There is no legal presumption of contact for grandparents.

Grandparents should firstly contact the parents and state that they are not taking sides and wish only to maintain contact with their grandchildren. If this approach does not work then mediation could be considered. However, all sides need to agree to mediation and therefore this may not prove to be an effective route to contact. The final option is to apply to the Court.

However, as stated above, there is no legal presumption of contact and therefore grandparents must firstly apply for leave to make their application. If a parent objects there will usually be a full hearing at which the grandparents will need to show that they have a meaningful and ongoing relationship with the child and it is in the child’s best interests for this relationship to continue.

If the Court grants leave to make the application then usually a CAFCASS officer will be requested to prepare a report. If that is favourable, but there is still a parental objection, a full hearing will be required at which both sides will have to give evidence.

Following the hearing the grandparents may obtain contact but this can be difficult to impose if the parent is continuing to refuse contact. This is because the ultimate penalty for breach of the Court order is prison and this, for obvious reasons, would be a rarely used option.


Step-Parents’ Rights and Responsibilities


Step-parents do not gain automatic parental responsibility for any step-children, no matter how much the commitment to their upbringing.

To obtain parental responsibility step-parents can go through a similar procedure as unmarried fathers – please see above. To have the agreement finalised all parties who currently have parental responsibility must agree and sign the document giving their consent to the step-parent acquiring parental responsibility.

Once parental responsibility is obtained step-parents have the same duties and responsibilities as a natural parent.


Dealing with children matters within a divorce can be both complex and emotional. It is therefore important that specialist advice is sought at an early stage to minimise any potential problems. Please contact Clare Ellison (clareellison@hhlegal.co.uk) or Sinead Connolly(sineadconnolly@hhlegal.co.uk) on 0800 371 407 for initial and confidential advice.