Couples face several new challenges when getting divorced or are separating, but one of the most important is deciding what will happen to the children.

Which parent will they live with…or both at different times? How much contact should each parent have? How much will each parent pay towards their children’s upkeep?

These can be complicated issues but it’s crucial that couples make the right decisions if they’re to avoid conflict further down the line. This means that, whatever the stresses, strains and emotional trauma of the break-up, couples must put the children first if they’re to reach an agreement that is fair to everyone.

Voluntary Agreements

Court proceedings can usually be avoided if you can agree voluntarily on where the children will live, how their time will be divided between you and settle child maintenance issues.

If you can achieve this then the next step is to ask your solicitor to draw up a consent order creating a legally binding agreement.

This order will contain the details of your arrangements and will need to be formally approved using the C100 court form. The court will usually accept the agreement as long the judge is satisfied that your arrangements are in your children’s best interests.

If the court does not agree, it may change refuse to approve the consent order or make a different order if it feels that is necessary for your children’s welfare.

Mediation

If you cannot agree voluntarily, you may have to begin court proceedings. However, before you do so, you may have to show that you have attended a meeting about mediation first. This would not apply in all circumstances, for example, if you had previously been subjected to domestic abuse.

A mediator’s role is to help you reach agreement without taking sides. Some couples find this helps them to break through deadlocks and move on. Any agreement reached through mediation will also have to be approved by the court for it to be legally binding and enforceable.

Child Arrangements Orders

If you can’t reach a voluntary agreement, or if mediation is not suitable or does not end in an amicable agreement, you can apply to the court for a Child Arrangements Order. This can cover all the arrangements for your children or just those that you have not been able to agree voluntarily.

Child Arrangement Orders usually deal with issues such as where your children should live, how much time they spend with each parent and what kind of contact should be allowed, such as letters or phone calls.

Before making an order, the court will consider several issues to protect the best interests of the children. For example, it will consider their views and feelings, their emotional needs and the ability of the parents to meet those needs.

It will also consider the effects the divorce and separation may have on the children. The court will want to minimise any disruption caused by the changing circumstances. This could raise several issues, such as if one parent wanted to move to a new area and take the children away from a school where they felt happy and secure.

Specific Issue Orders

There may be concerns between you that fall outside the scope of the general arrangements you’ve agreed. This might include which school the children should attend, whether they should have a religious education, whether they should change their surname or if the children can travel abroad or even relocate elsewhere.

These matters can be dealt with by applying for a Specific Issue Order.

Prohibited Steps Orders

These are used less often but can be helpful to prevent the other parent making a decision about your children’s upbringing without your approval, such as taking them to live abroad or changing schools.

Parental Responsibility

Only people with parental responsibility, usually but not always just the mother and father, can automatically apply for the above court orders. Grandparents, and other people in certain circumstances, can also apply but would usually need to get court permission first.

Divorce and separation is a stressful time even if everything runs smoothly. Parents should remember that the interests of their children come first and avoid trying to use access to them as a way of punishing the other partner.

It is always better to reach a voluntary agreement than to have one imposed by the court, which can sometimes make decisions that neither parent likes.

Remember, that the courts will always try to take a pragmatic view and do what is best for the children, so parents have very little to gain by being awkward with each other.

If you would like more information or advice about the issues raised in this article, or any aspect of family law please contact our expert legal team on 0208 004 0065, by email at [email protected] or using the form below.

The contents of this article is general information only. The information in this article is not legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should obtain independent expert advice from qualified solicitors such as those within our firm.