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Divorce

Our clients often ask us, “Do I have the right to have contact with my children after I get divorced or separated?”

What does ‘contact’ mean?

To help with answering this question it can be helpful to first understand what Contact means and how this is applied by Family Courts in England & Wales. In all cases the Court’s paramount concern is the child’s welfare.

When parents are sorting out patterns of time to be spent by the children with each parent, there are always significant emotional issues at play. For most parents, the children are the most important factor in divorce or separation. If one parent has made the choice to leave the family home, the guilt and sense of having abandoned the children can be overwhelming. This can sometimes lead that parent to propose that care of the children be split equally, even if a realistic appraisal of the parent’s own work circumstances would indicate that this might not be feasible. In these circumstances, the parent who remains in the family home with the children can feel that not only is their personal and financial integrity threatened by the breakdown of the marriage, but also their former partner is threatening to take their children away. This can therefore mean that parents are forced to seek assistance from the Court in assisting with how contact and residence of the children is to be decided.

Child Arrangement Order

We no longer use the terms Contact Orders or Residence Orders in reference to whom a child is to live, spend time or otherwise have contact with. These are now referred to as a Child Arrangement Order that regulates the arrangements relating to contact with children after divorce or separation.

There are different ways in which contact with children may take place:

  1. Direct visiting contact between the child and the person named in the Child Arrangement Order
  2. Overnight staying contact
  3. Supervised contact, and
  4. Indirect contact through letters or cards, phone calls and face time over the internet.

In rare circumstances, where the welfare interests of the child dictate, the Court can order that there is no contact.

Who Can Apply for a Child Arrangement Order?

All mothers have Parental Responsibility automatically. Fathers also obtain parental responsibility if they are married to the child’s mother a birth or are named on the child’s birth certificate. The main role for someone with Parental Responsibility is to provide a home for the child, to protect and maintain them.

If you have Parental Responsibility for a child who does not live with you, you do not necessarily have the right to have contact with them. But the other parent with care must still keep you informed about important matters that affect the child, including health, living arrangements, religion, education and welfare issues.

A child’s parents may have equal and joint Parental Responsibility but if it is agreed or ordered by the Family Court that a child is to spend time with both parents, it does not necessarily mean the right that the child’s time will be spent equally between their parents. The child may spend more time at the home of one parent than at the other; the Child Arrangement Order will set out in detail how the child’s time is to be divided.

A child’s parent can always apply for a Child Arrangement Order, as can a child’s step-parent if they have Parental Responsibility; other people may also apply if certain conditions are satisfied or they have permission to do so from the Family Court.

If it is not possible to reach an agreement about time with the children or where they should live, you can apply to the Court for a Court Order. Before you can do this you are now required to attend a meeting with a Mediator to see whether Mediation might be suitable, as the alternative to going to Court. In the circumstances it is advisable to seek legal help.

How Does the Court Decide?

The first concern of the Court is the child’s welfare. As set out in the Children Act 1989. There are a number of factors which the Court will have paramount regard to in assisting the Court in making a decision. The factors are:

  1. The wishes and feelings of the child concerned
  2. The child’s physical, emotional and educational needs
  3. The likely effect on the child if circumstances changed as a result of the Court’s decision
  4. The child’s age, sex, background and any other relevant matters
  5. Whether there is any risk of harm the child has suffered or may be at risk of suffering
  6. The capability of the child’s parents in meeting the child’s needs.

The Court must also be satisfied that making a Court Order is better for the child than not making an Order at all. At the same time the focus is on upholding the child’s right to have contact with both parents.

Matters relating to children on separation depend overwhelmingly on the circumstances of the family. They are not subject to the same rules as other areas within the family justice system: the approach to the court takes is very much that the children are individuals, and arrangements that are made must be in their best interests.

 Next steps

Should you have any questions or are seeking assistance in respect of contact with your children post a divorce or separation then please do not hesitate to contact our Family Department Lesley Smythe or Haydn Clarke on Lesley.Smythe@dtmlegal.com or Haydn.Clarke@dtmlegal.com.

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