Child custody information
It is now over 20 years since lawyers and judges talked about Custody. We now call custody “Child Arrangements” or “Residency” and frequently a child will share their time between mother and father. The latter is called “Shared Residency”.
The most important point to remember is that the welfare of the child is the paramount consideration for the family court and practitioners.
The family court can make an order under section 8 of the Children Act 1989. Such orders include a residence order, contact order, prohibited steps order or specific issue order. The family court must have regard under section 1(3) of the Children Act to a Welfare Checklist.
A point I would like to stress is that although you may be feeling angry, hurt and upset, you should never use a child as a bargaining chip e.g., threatening to alienate the child from the other parent or refusing the other parent to see the child. An organisation called CAFCASS plays a vital role if a dispute regarding a child or children cannot be settled between parents or in family mediation. If the dispute is presented in the family court, the Welfare Report from Cafcass can have a decisive influence in the family judge’s decision making.
(Click on the principle below to expand and get further info)
I tried to settle matters with my ex directly and through family mediation, but we have not been able to agree. How do I get the case to the family court?
You need to complete form C100. Useful web address https://www.gov.uk/government/publications/form-c100-application-under-the-children-act-1989-for-a-child-arrangements-prohibited-steps-specific-issue-section-8-order-or-to-vary-or-discharge. When you apply you can also ask the court to make a Specific Steps Order or an Order not to do something known as a Prohibited Steps Order.
For example, you may not wish your child to meet your ex‘s girlfriend until you can establish that it is not a causal relationship. Or you may wish to ensure that the child’s passport is held by a neutral third-party to ensure the child cannot travel abroad without your consent.
Who/what is Cafcass?
It stands for Children and Family Court Advisory and Support Service. Useful Web address https://www.cafcass.gov.uk Cafcass is a government quango set up to provide help and advice. It represents children in family court cases in England. They independently advise the family courts about what is safe for children and in their best interests. They try to put their needs, wishes and feelings first, making sure the children’s voices are heard and at the heart of the family court setting. They are independent and their duty is to safeguard and promote the welfare of children going through the family justice system.
Currently, they support over 40,000 children every year and seek to understand their experiences and speak up for them when the family court makes critical decisions about their future. It is the largest employer of social workers in the country. In private law cases which I deal with, Cafcass only becomes involved at the request the court. After the court has received the application the court invariably refer the case to them under Section 7 of the Children Act 1989. Cafcass then provide the court with information needed for a safe decision to be made about the arrangements for the child or children.
In theory, they try to help you and the other adult reach a safe agreement about your children. You may find it useful to look at the legal processes set out in the Child Arrangements Programme 2014 https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_12b You can expect a phone call from Cafcass to find out if either you or your ex have any concerns about the safety and welfare of the children. You should receive an introductory letter 3 days before the hearing, Cafcass provide the court with a safeguarding letter.
Do I need to prepare a Parenting plan?
This is a written plan worked out between parents to cover practical issues. They can help clarify arrangements you need to put in place for the care of your children after separation, without having to go to court. It is a really good idea to start this and it is likely that the judge will expect you to do this. Here is a parenting plan example. https://www.cafcass.gov.uk/grown-ups/parents-andcarers/divorce-and-separation/parenting-plan/
Where does Family mediation fit in?
Before filing the form C100 you will need to have attended a Mediation Information & Assessment meeting (“MIAM”) unless there has been domestic abuse. Visit for guidance https://www.familymediationcouncil.org.uk/family-mediation/assessment-meeting-miam/. You can find an accredited and regulated family mediator through websites and membership organisations such as Family Mediators Association https://thefma.co.uk/ or Resolution.
https://resolution.org.uk/find-a-law-professional/ Mortlake Law and Mediation is a member of both. Once you have had your MIAM the mediator will contact your ex to try to persuade them to also have a similar meeting on a one-to-one private and confidential basis.
Sadly, this rarely occurs and therefore you will need to get the mediator to sign the form C100 to state why and tick the relevant box.
I thoroughly recommend family mediation to settle disputes in private.
There must be full financial disclosure as if you were proceeding to court unless the mediation is solely to do with children. The mediator is trained to help you reach and negotiate a settlement that is fair and reasonable to both of you without the stress and extra expense of going to court. Unfortunately, many solicitors encourage matrimonial clients to contest matters through the family courts with a view to earning extortionate fees. We have, I regret, a flawed system.
Private social workers report
The report done by Cafcass is often carried out by a fairly in experienced social worker. It may well be prudent, if you are afforded, to commission a private social worker report and seek permission to put this in evidence before the judge.
What should I do if I have a dispute about my child or children?
You need to act quickly, especially if there is a danger of alienation. Cases involving children are dealt with by the family court in priority to other cases, but inevitably there will be some delay in the court system, made worse by COVID-19. Be prepared, in the current lockdown for the hearing to be by videoconference.
I have excellent wide-ranging experience of private cases, involving a child or children. Please call or email me for more help or advice.
T. (020) 3935 9490
M. (07541) 120113
richard@mortlakelaw.co.uk
GLOSSARY OF TERMS
Child Arrangements Order
A ‘child arrangements order’ decides where your child lives. When your child spends time with each parent when and what other types of contact take place (phone calls, for example)
Child
A person under the age of 18
Mediation
Talking to two separate people or groups involved in a disagreement to try to help them to agree find a solution to their problems.
MIAM
The MIAM is a private meeting between you and a mediator to find out if there are alternative ways to find solutions to your problems. In the MIAM the mediator will explain to you: what your options might be. what mediation is, and how it works.
Prohibited Steps Order (PSO)
A prohibited steps order is an order that stops a parent who has parental responsibility (PR) from exercising that PR in relation to the issue set out in the PSO. In other words, the prohibited steps order would stop a parent from doing something regarding a child as set out in the order without the permission of the court. A PSO tells a parent what they cannot do in respect of their child or children.
Residence order
An order settling the arrangements to be made as to the person with whom a child is to live
Specific Issue Order(SIO)
An order sought from the family court to determine a specific question which has, or may arise, in connection with any aspect of Parental Responsibility for a child.
Welfare Checklist
Under section 1 (3 of the Children Act where a court is considering whether to make a section 8 order or special guardianship order, it is directed to have regard to the following circumstances:
a) the ascertainable wishes and feeling of the child
b) the child’s physical, emotional and educational needs
c) the likely effect on the child of any change in their circumstances
d) the child’s age, sex, background and any other characteristics which the court considers relevant
e) any harm which the child has suffered or is at risk of suffering
f) how capable each of the child’s parents are and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs.
g) the range of powers available to the court under the Act.
Welfare report
Under section 7 of the Children Act 1989, the court when considering any question with respect to a child may order a report relating to the welfare of a child to be prepared by CAFCASS or a local authority