May 21 2024
Close this search box.

How will you and your ex decide who looks after the children if you can’t agree?

How will you and your ex decide who looks after the children if you can’t agree?

When you begin divorce proceedings you must fill out the ‘statement of arrangements’ form setting out the proposed arrangements for your children. The courts want to know, for example, where the children live, who with, how often the other parent sees them, where they go to school, and what financial support they receive. In practice, unless you are setting out slightly unusual arrangements, or there is anything else to alert the court, it is unlikely to intervene unless either side makes a specific application.

If it looks as though there is going to be disagreement over arrangements to do with your children, then you can make an application to the court to make certain orders – for example, by ordering contact to take place or to settle specific issues or prohibit certain steps from being taken. These are known as ‘section 8 orders’.

There are different types of ‘section 8’ orders:

  • Residence orders: concerning where the child should live. The granting of a residence order to someone automatically gives that person parental responsibility for the child if they do not already have it. Such an order lasts until the child is 16 unless the circumstances of the case are exceptional and the court has ordered that it continue for longer. Shared residence orders are increasingly common providing for children to spend time with both parents.
  • Contact orders: detailing arrangements for a child to see or have contact with one parent or significant other. Contact orders continue until the child is 16 years. The court will only make contact orders for children over 16 years old in exceptional circumstances. Contact can either be direct (face-to-face) or indirect (by letter, video, exchange of Christmas cards, etc.). Some orders will be very specific as to times, dates and arrangements whereas others will be left open with the arrangements to be made between the parties. These orders can be for contact between siblings or the child and wider family members and not just for parents. Sometimes it will give directions that the contact is to be supervised by a third person.
  • Prohibited steps orders: effectively, a ban on a child’s parents, or any other named person, from taking certain steps that parents would ordinarily take, such as taking a child abroad; and
  • Specific issue orders: as to how a particular matter should be handled, for example, where a child is to go to school.

Either parent can make an application for such an order whether you are married or not and, if you are married, before you have started divorce proceedings or not. The courts are only concerned about the welfare of the young – under-16 years or between 16 and 18 and still at college or school full-time. This includes adopted children, step-children or those who have been treated as part of the family but not foster children.

Both the Court Service and CAFCASS (the Children and Family Court Advisory Support Service) have information on applying for section 8 orders on their websites. The court will only make any of these orders if it accepts that making an order is better than not intervening at all. The intention of the law is to free parents up to make decisions for themselves rather than intervene unnecessarily.

Court proceedings concerning section 8 orders generally begin with a conciliation appointment or a first hearing. This will take place in chambers, in other words in a judge’s room and in private. There will often be a CAFCASS officer present known as a children and family reporter. CAFCASS is present to safeguard and promote the welfare of children involved in family court proceedings (see chapter8).

You may sometimes be asked to talk with the CAFCASS officer in private and without your lawyer to ascertain the issues and try and reach an agreement. It is good advice to always consider mediation (see later) unless that is not going to be possible.

If an agreement can be reached then the judge will take a view, having consulted with you and your partners’ lawyers, as to whether he needs to make an order or simply to record formally the arrangements that have been made.

However if there is still no agreement, the CAFCASS officer can then advise the court on options. This could be more time with a mediator or CAFCASS officer to assist them to reach an agreement; adjourning the hearing so that they can write what is known as a welfare report on all the children’s circumstances; making further inquiries; or proceeding to a court hearing to decide what orders, if any, should be made.

If no agreement is reached, the CAFCASS children and family reporter [same as CAFCASS officer? consistency] might be asked to write the welfare report giving a view as to what should happen. This takes at least ten weeks and often much longer. The CAFCASS officer is independent of the courts and social services (as well as separate from education, health authorities and other agencies). The welfare of children is their primary concern and they are qualified in social work and experienced in working with children and families. Sometimes agreement can be reached after the CAFCASS report without any need for a final hearing.

The reporter will generally speak with you, your partner and, in particular, your child. If a child is clearly too young (e.g. two years old) then the child will not be directly involved. A joint meeting might be proposed (i.e. with your partner) but you have the right to be seen by yourself especially if you are uncomfortable being in the same room as your partner.

Your child should not be asked to take sides or which parent they like best. According to CAFCASS, ‘Instead the children and family reporter will talk with your children about how they can best stay close to both parents – practical things like school and who does what in the family.’ The reporter might talk to other people, such as doctors, teachers, relatives, health visitors and social workers. Such enquiries are confidential unless any information is given that a child is at risk.

When the report is finished, it goes to the court, and a copy is sent to your solicitor if you have one or directly to you if you don’t. The reporter will let you know who they are talking to and will ask for your agreement when they need to. It is also usual to approach police and social services, including the child protection register.

The court (under the Children Act 1989) has to have the child’s welfare as its ‘paramount consideration’. The court when considering questions relating to the upbringing of the child must have regard to what is known as ‘the welfare checklist’ set out in the Children Act 1989, section 1. So, the court must consider (amongst other things):

  • the ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding);
  • their physical, emotional and/or educational needs;
  • the likely effect of any change in his circumstances;
  • their age, sex, background and any characteristics which the court considers relevant;
  • any harm which they have suffered or are at risk of suffering;
  • the ability of each of his parents (and any other person in relation to whom the court considers the question to be relevant) is of meeting the child’s needs; and
  • the range of powers available to the court under the Children Act 1989 in the proceedings in question.

Although the ‘week on/ week off’ shared parenting arrangements found in the US are mostly not favoured here, the courts often expect a generous level of contact for a child of school years. It is accepted that it often best for a child to be mainly at one home during the school week. However many courts will agree contact arrangements (if geographically close) of alternate weekends collection from school on Friday afternoon and return on Monday mornings and perhaps every Wednesday from school and return to school on Thursday morning. If a father cannot commit to this, the court may give the mother greater financial provision as it is clear that they are taking the greater childcare burden. Similarly courts expect half of all school holidays (subject to the age of the child) and alternate Christmases and Easters and other faith days.

Thanks very much to Punam Denley, a partner at the International Family Law Group LLP for reviewing and to David Hodson, also partner at the International Family Law Group LLP, who reviewed an earlier version which appeared in A Parent’s Guide to the Law by Jon Robins (LawPack , 2009).  Stephen Lawson, a litigation partner at Forshaws Davies Ridgway LLP assisted with the section on the CSA.