Without Going to Court
Going to court to get Residence and Contact disputes resolved should be a last resort. There are many other ways of reaching an agreement on what should happen with your children which are faster, cheaper and less stressful.
Family Mediation is one way of settling differences during and after separation or divorce. A trained mediator will help you and your ex-partner to agree arrangements for looking after your children. The mediator will not take sides or try to get you back together. Mediation can help you to agree arrangements by talking things through. The mediator will not tell you what to do but can help you both to reach agreements that are best for your children.
A mediator helps you and the other person to talk about the things you cannot agree on and will help you both see if there is any way that the two of you can agree arrangements. Not all cases are suitable for mediation (especially where there has been violence or other serious welfare concerns). The mediator will help you decide if your circumstances are suitable for mediation and will not start mediation if he or she does not think it is appropriate. Anything you talk about during mediation will usually stay private and will not be reported to the court unless issues of child protection or alleged criminal offences are raised.
If you are eligible you can receive legal aid for family mediation.
An alternative to mediation is Collaborative Law. Here both parties have their own legal adviser and they try and reach an agreement in a series of ‘4 way’ meetings.
There is a Government guide (from the HM Courts & Tribunals Service) for separated parents covering children and the family courts. This can be found on the Cafcass website at https://www.cafcass.gov.uk/media/168195/cb7-eng.pdf.
Further useful information can be found on the Cafcass Website (Cafcass is the Children and Family Courts Advisory and Support Service).
The Ministry of Justice has produced a series of video guides for separated parents covering children and family courts.
If You Need to Go to Court
Before applying for a court order the court will expect you to either have been to a Mediation Information and Assessment Meeting (known as a MIAM) or to show why you do not have to go to a MIAM.
The court will try to help you and the other parent to agree how your children will be looked after following divorce or separation. After you have divorced or separated you are still both jointly responsible for making decisions about your children. It is usually better if you can reach your own agreements (with the help of the court if necessary) rather than have the court take decisions for you.
At the start of the process a court appointed Cafcass officer will meet with the divorcing or separating couple to try and reach an agreement on arrangements for the children. If a consensus cannot be reached then the Court may order that you both attend an Information Programme for Parents that have separated or other relevant course. Or, if the Court think it is necessary, the Cafcass Officer will be asked to prepare a report which will involve the Officer interviewing you both and the children (if they are old enough). The Cafcass officer will make a recommendation to the court as to what arrangements should be determined and what court orders can be made.
There are many different arrangements that a court can order for families after divorce or separation. What the court orders will depend on the details of your particular case, which can be different for each family and each child. When you are talking about your case in court, it is important to focus on what your children need. The court will always put your children’s best interests first and do what it considers to be best for them, and this might be different from what you want.
The court orders that can be made can determine with which partner the children will live (Residence), their contact arrangements with the other partner (Contact) and specific issues. The court orders are as follows…
- Residence Order determines who the children should live with and where. If you want your children to live with you but cannot agree this with your ex-partner, you would need to apply for a residence order.
- Contact Order tells the person with whom the children live when the other parent must see them. Contact can include visiting and staying. Contact can be direct (face to face) and indirect (e.g. telephone, social media or Skype). If your children live with your ex-partner who doesn’t agree to your desired contact arrangements, you would need to apply for a contact order.
- Specific Issue Order relates to something specific that either parent raises about the way the other parent is looking after the children. For example, you and your ex-partner may not be able to agree on where your children should go to school.
- Prohibited Steps Order stops a parent from doing certain things without the court’s permission. For example, you (or your ex-partner) might need to get the court’s permission before taking the children abroad.