Legal Advice For You and Your Business

Child Contact & Residence

The Court prefers that the child’s parents agree between themselves where the child should live (residence) and how often the other parent will see them (contact).

It is usual to try and keep the children settled in the family home, wherever possible, to minimise the disruption to their daily lives. Account does need to be taken of the accommodation of both parents though to ensure the children are in safe, secure and suitable surroundings when they are with the absent parent.

Does the Court have to become involved?

The short answer to this is no. The Court generally prefers separating parents to agree between themselves, the arrangements for the children. When a divorce petition is filed at Court, there must be a statement filed at the same time setting out what has been agreed concerning where the children will live, contact with the absent parent, who will be looking after them during school holidays, educational arrangements, and details of any special health needs. Provided both parents agree, the Courts will not normally interfere.

What powers does the Court have?

If Court Proceedings are necessary because an agreement cannot be reached, the Court has the power to order the following:

  • A Residence Order says where a child should live. The Court can, in some circumstances, make such an Order in favour of more than one person, stipulating how long the child should spend with each;

  • A Contact Order regulates telephone calls, visits, night stop-overs, weekends or holidays with the absent parent;

  • A Prohibited Steps Order may be necessary when one parent objects to something that the other parent is doing concerning their child. That parent can apply to the Court for the other person to stop doing it;

  • The Court can consider a Specific Issue Order if parents are unable to agree on a specific aspect of their child’s upbringing, e.g. schooling. In all of the above cases, to obtain an Order, it is necessary to apply to the Court and for the Judge to make an Order. However, this is often not necessary and if both parties and the children are happy with arrangements there is no need for the Court or Lawyers to become involved.

How does the Court decide arrangements for children?

The Court follows various principles including:

  1. Delay is detrimental to a child and arrangements should be sorted out as soon as possible to ensure the child does not suffer;
  2. The welfare of the child is always paramount;
  3. A Court Order should only be made when necessary;
  4. The wishes and feelings of the child should be taken into account.

Ideally, a couple should put the needs of the children foremost and be able to put their own differences aside to agree where they should live, etc. It often assists matters if arrangements for the children can be agreed at the outset, either directly between you and your former partner, at mediation or via solicitors.

How does the court know what is best for my child?

If an agreement concerning arrangements for the children cannot be reached, either parent may apply to the Court for one of the above Orders. It is likely that the court will instruct a CAFCASS officer to prepare a report.

CAFCASS officers are independent social workers instructed by the court to investigate the wishes and feelings of the children. It is the CAFCASS officer’s role to make recommendations to the Judge concerning the arrangements that he or she considers to be in the best interests of the child. The CAFCASS officer will often meet with the child’s teachers, GP and various other professionals when conducting his or her investigations. The Judge will, in most circumstances, follow the recommendations of the CAFCASS officer when making his final decision. It is therefore extremely important that you co-operate fully with the CAFCASS officer throughout your case. The child’s wishes and feelings will be taken into account, but only in light of their age and understanding. The Judge will aim to make an Order that is in the best interests of the child.

What about finances?

A good first step is to find out about Child Support and other available benefits, like Family Tax Credit. We can advise you on your eligibility for child maintenance via the CSA and your eligibility for welfare benefits, which you may become entitled to upon separation.

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