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Family Court and a Child Arrangement Order

Chris Fairhurst

23.23.2018

Every year, more than 200,000 children experience the separation of their parents, which means that before their 16th birthday, one in three children will see their parents part ways.  What a sad reality. 

This is a hugely emotional topic, and speaking as a parent myself I do understand the strength of feeling often expressed in the privacy of my office. We know that the breakdown of a relationship is a difficult and emotional time for adults, but sometimes those grown-ups are so caught up in dealing with that breakdown they forget the effect it has on the children. In fact, I’d suggest the impact is probably underestimated, and that there is a risk those children’s needs and emotional wellbeing are overlooked. It doesn’t take a child psychologist to recognise that children witnessing their parents getting on, rather than the opposite, will be all the better for it. And there is plenty of evidence to suggest the upset and mental health difficulties caused for children whose parents don’t behave well towards one another is significant.

It follows that the best arrangements are those that are agreed between parents and suits their family’s own unique circumstances. But there are those who can’t find a way to reach an agreement – what happens then? The parents need to apply to the Family Court for a Child Arrangement Order so that each adult can spend time with and/or live with the child or children.

When all else fails, many go down this route. The Children and Family Court Advisory and Support Service (CAFCASS) continues to report increasing numbers of parents relying on the Family Court’s involvement with more than 40,000 applications being issued each year.

What is a Child Arrangements Programme?

If an application to court is made, cases are determined in accordance with the Child Arrangements Programme (CAP) which sets out the steps the court takes to deal with cases.

Particularly important and something considered from the outset is the obligation to consider whether domestic abuse is raised as an issue, either by the parties or CAFCASS, the latter being tasked with making enquiries of both parents, police and social services.  This is so CAFCASS can prepare a safeguarding letter at the first hearing, further to which the Court will decide whether any hearing is necessary to determine disputed facts, relating to any allegations, before the case can progress.

The Children Act 1989 is the main source of law that governs relationships between children and their carers. Disputes following separations are often referred to as private law proceedings, because any dispute is between private individuals.

There is plenty of evidence to suggest the upset and mental health difficulties caused for children whose parents don’t behave well towards one another is significant.

The first, and paramount, consideration of the court is to the welfare of the child, as opposed to any perceived “rights” of any adults involved. The court will determine the facts and consider the Welfare Checklist to help it decide upon what is in the child’s best interests. A “presumption of continued parental involvement” exists, but this should not be mistaken as a presumption of shared care or guarantee of direct or indeed any contact.  Rather it is an acknowledgement that parental contact with a child is assumed to be in a child’s best interests, providing of course there are no welfare issues why this should not be the case.

This checklist includes:

•         the ascertainable wishes and feelings of the child

•         the child’s physical, emotional and educational needs

•         the likely effect on the child of any change of circumstances

•         the child’s age, sex, background and any characteristics of the child which the court considers relevant

•         any harm which the child has suffered, or is at risk of suffering

•         how capable each of the child’s parents, and any other person in relation to whom the court considers the question relevant, is of meeting the child’s needs

•         the range of powers available to the court

What is a Welfare Report?

In more complicated cases, the court may direct CAFCASS to prepare a Welfare Report.  This sets out the analysis and recommendations of an independent Family Court Advisor, for consideration by the court when deciding at a final hearing, if the parents do not agree prior to this.

The task is not an easy one for the court as there is no “one-size fits all” arrangement for children - no two families are the same, and different arrangements work for different families. The court will attempt to reach an outcome which suits everyone as best as is possible, providing always the children’s needs come first.

If you think this is a situation that might affect you, or indeed is a situation you find yourself in at the moment, please do get proper legal advice as soon as you can.  We’re here to help you, just contact us on 0161 507 7145, or email chris.fairhurst@mcalisterfamilylaw.co.uk

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