What happens when there are children involved in divorce or separation?
The English courts have had the power to take responsibility for children for hundreds of years: particularly an orphan could me made a ‘ward of court’ so that somebody independent could make arrangements for them. That inherent responsibility was formalised in divorce cases by the children having to be mentioned and their circumstances set out in every case after the Matrimonial Causes Act in 1973.
Has that changed? What is the situation now for children in divorce?
Since the Children Act 1989, the default position for the law is that children should not be subject to court orders, nor the scrutiny of the judges unless absolutely necessary. That is called the ‘No Order Presumption’.
That applies for children whether or not their parents have been married to each other, so it was a sea-change in attitude from the previous process that required that a judge gave a Certificate that either the arrangements concerning a child were satisfactory or were ‘the best that could be devised’ when married parents got divorced.
The court system is only interested in children if somebody – usually a parent or the local Children’s Services/Child Protection Safeguarding Team – applies to the court for an Order.
What is a ‘care’ case?
When there are concerns about the welfare of a child and that there might be ‘significant risk of harm’, then the local authority may make an application under Public Law to look at those concerns and what can be done to reduce the risk to the child.
One way for a child to be given greater protection is by being ‘taken into care’ which gives the court powers which it may delegate to the local authority (Social Services) which include having the child reside somewhere other than with a parent.
The complexities of Public Law applications are beyond the scope of this article which is about ‘Private Law’ situations between members of the family.
What does a judge look at in Private Law children cases?
In Private Law cases, the court is still concerned with the welfare of children, but is not contemplating the child living away from the family.
The cases involve the needs of the child and there is a Welfare Checklist to help people remember all the factors that may be important.
The court will need to assess whether and to what extent a parent or other relative is capable of meeting the child’s particular needs. This may become relevant as to what contact arrangements the court orders and whether they are in the particular child’s best interests.
What is in the Welfare Checklist?
Because the law was given a wholescale overhaul in changing the courts’ role and powers, the Children Act 1989 starts with the Welfare of the child and says:
(1) When a court determines any question with respect to
(a) the upbringing of a child; or (b)the administration of a child’s property or the application of any income arising from it the child’s welfare shall be the court’s paramount consideration.
8 Factors a Judge must consider
The Act goes on to give a of 8 things that the court shall have regard in particular, namely:
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of age and understanding);
(b) the child’s physical, emotional and educational needs;
(c) the likely effect of any change in circumstances;
(d) the child’s age, sex, background and any 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 his parents, 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 this Act in the proceedings in question.
What power does a judge have to decide about our child?
The law allows a Judge sitting in a private case (i.e. where the parties are the parents’ themselves and not the Local Authority) to make orders governing where a child lives, who they spend time with, whether to prohibit a parent or from doing something or whether to give permission for the child or parent to do something relating to the welfare and upbringing of that child. This could include, for example, whether a child receives particular medical treatment or not. These types of orders (known as ‘s.8 orders’) will generally last until a child reaches 16 years of age. This means that in most cases the court cannot make decisions and orders for a child once they have turned 16. However, the law does allow Judges to extend the duration of s.8 orders until a child turns 18 years of age. This can happen in some defined circumstances which the law says have to amount to ‘exceptional circumstances’. It may be appropriate for a s.8 order to last until a child’s 18th birthday if they are vulnerable, have special health/medical needs or otherwise lack capacity to make decisions of their own.
Who makes the decisions when parents cannot agree?
The simple answer to that is a family court judge.
The Judges allowed to hear child cases have additional training and will decide what evidence is needed with the help of CAFCASS.
What is CAFCASS?
Cafcass stands for the Children and Family Court Advisory and Support Service which took over from Court Welfare Officers in being the eyes and ears of the judge – a duty the CWOs fulfilled in criminal cases as part of the Probation Service – their experience of working with families in distress and having to deal with people who were not always entirely truthful was useful for the judges who did not have the time to see families and children in their home or school environments.
From their own website they explain their role as follows:
Cafcass represents children in family court cases in England. We independently advise the family courts about what is safe for children and in their best interests. We put their needs, wishes and feelings first, making sure that children’s voices are heard at the heart of the family court setting. Operating within the law set by Parliament (Criminal Justice and Court Services Act 2000) and under the rules and directions of the family courts, we are independent of the courts, social services, education and health authorities and all similar agencies.
Our duty is to safeguard and promote the welfare of children going through the family justice system, supporting over 140,000 children every year by understanding their experiences and speaking up for them when the family court makes critical decisions about their futures.
What is a Child Arrangements Order?
A child arrangements order is an order of the court which sets out the judge’s decision about the issues raised by the parents and is often made at least in part by agreement. Having some parts agreed is called ‘narrowing the issues’ leaving only those parts that agreement has not been reached on for a decision by the judge, who will be guided by both what evidence is produced and by what the independent CAFCASS child expert says.
So a Child Arrangements Order is reached made after evidence is considered including from specialists in dealing with children: CAFCASS.
What can I do if my ex breaches a Child Arrangements Order?
You may go through a long and stressful court case to get a Child Arrangements Order setting out your contact time with your child, but what happens if your ex does not comply with the Judge’s order? Sadly this can happen and it is something which clients often ask me to help with.
The first thing to do is try and see if the matter can be resolved outside of court as, no doubt, the last thing you will want is another court battle if you have already had to go through one. For this reason solicitors would normally write to the other parent setting out their breach and put them on notice that if they do not immediately comply with the order then the client will instruct the lawyers to return the matter back to court to enforce it. In some cases this early intervention will swiftly resolve the matter. It will make the other parent realise that you are taking the breach seriously and, like you, the other parent probably also does not want to enter into another court battle with the costs and stress that can cause.
What if my ex is stubborn and still refuses to comply?
In this instance we are afraid that your only option to enforce the Child Arrangements Order would be to return the matter to court. You would be seeking enforcement of the order previously made by the court. Unlike the first court application you brought, you would not be required to attend another mediation appointment before returning to court.
Should I bring the case back to court to enforce the Child Arrangements Order?
Generally, the court will expect there either to be a major breach (e.g. a complete suspension of the court ordered arrangements) or a pattern of breaches before taking an enforcement application seriously. A parent runs the risk of being criticised by the court should they prematurely bring an enforcement application over a relatively minor breach of the order. You need to be sensible and pragmatic.
However, if there is a major breach or a pattern of breaches, and if your ex ignores any warning letter from your solicitor, then you will, regrettably, need to return to court with an enforcement application.
What would the court do if I bring an enforcement application against my ex?
If the court finds that a parent is in breach of a Child Arrangements Order for no good reason then the court has discretion to impose a ‘punishment’ on that parent; including a fine, an order for unpaid work or, in the most extreme cases, even a term of imprisonment. However, it is important to stress that it is unusual for the Family Court to use these enforcement powers. The Family Court is set up to find solutions to problems and not to penalise or ‘punish’ parents. From our experience of dealing with these cases, it is often the case that the Family Court will only seriously consider ordering these available enforcement measures in circumstances of ‘egregious’ (very bad) behaviour or multiple and continuing breaches by a parent.
Your main focus should be achieving the reinstatement of the previously court ordered arrangements. That is the approach the Family Court is likely to take.
Can the court change my Child Arrangements Order if I bring it back to court?
The simple answer is, ‘yes’, the court can do so if it considers circumstances have changed to justify a variation to your Child Arrangements Order. Often the parent in breach of the order will argue either that the ordered arrangements have not worked for the child or that circumstances have changed since your last court case which justifies the terms of the order changing (in other words, the parent in breach will invariably argue that they have a ‘good reason’ to breach the order).
Sometimes the parent in breach of the order will respond to an enforcement application by filing an application of their own to vary the Child Arrangements Order. If these arguments are made then the court will need to consider them and decide whether circumstances have changed for your child which means that the Child Arrangements Order should be changed, or whether the parent in breach has no justifiable, good reason to do so and therefore look to enforce the Child Arrangements Order. If the court takes the latter approach then, as outlined above, it is unlikely on the initial application at least that actual enforcement measures will be made, but the court can warn the other parent of the importance of complying with the order. If that doesn’t work and you need to return the matter to court for a second or even third time to enforce the Child Arrangements Order then the court may be more open to taking enforcement measures at that time.
Can the court change the Child Arrangements Order to my advantage if I bring an enforcement application?
Yes, the court can do this and will often prefer this approach as to taking punitive enforcement measures against the other parent. A Judge may take the view that the other parent is just incapable of complying with an order and of promoting contact and therefore decide to take the ‘nuclear option’ of ordering that there be a change of residence or an increase in contact to the other parent.
What should I do to start with when there is a breach of an Order?
Keeping some channels of communication open is important for co-parenting following separation. Reasonable dialogue costs nothing but time and perhaps pride in contemplating that you may have gone about things in a sub-optimal way. Being open to finding an better way of doing things is less expensive that hiring lawyers or going to court where people who do not know your children will become involved in making decisions about them.
However, reasonableness is not always successful and sometimes a court needs to become involved.
As can be noted from the above, enforcement applications can be tricky and they are not straightforward. It is important you seek specialist legal advice before taking any steps to enforce your Child Arrangements Order through the court.