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Children Issues on Divorce
Residence and Contact arrangements do I need a Court Order?
After a separation, it is generally a good idea to get children into a routine as far as contact with the non resident parent goes and many parents do manage to reach an amicable, informal agreement between themselves. In these circumstances, no Court Order is needed or even desirable.
Other parents find it more difficult, however, often due to some simmering resentment still between them. If this prevents arrangements for the children being made and is not rectified quickly, it can lead into a downward spiral of entrenched problems, with the children at risk of becoming pawns in a battle between their parents - and of suffering the emotional harm which that entails.
After all, we hear increasingly of research showing the negative impact of separation on children. The way the situation is handled, however, seems to be the key indicator of how well children will adapt to the changes.
Preparing sensibly for contact, by setting up an agreed, regular basic routine and organising holidays well in advance, provides certainty for both children and parents. This will particularly help to avoid children suffering anxiety over the situation, unjustified feelings of fault and the unfair pressure of having to choose. Older children will doubtless want to have some input in the arrangements, however.
It is equally important to recognise that the routine is there as a foundation and not set in stone. There may need to be a degree of flexibility in any settled arrangements, to accommodate any unforeseen and unavoidable occurrences.
The focus should be kept on the needs of the children, who in many cases will benefit from maintaining regular, sustained contact with both parents and spending quality time with each, in order to nurture and develop their relationships. It is a lifelong responsibility for both parents to make sure this happens!
The crux of making contact work, for the childrens sake, is for parents to always strive to treat each other with respect and fairness when it comes to making arrangements for the children, though this is not always easy if parents are harbouring deep feelings of resentment. The important thing then is to refocus on what is in the best interests of the children.
It is also fundamental, for contact to work, that children do not feel as though they are betraying one parent by spending time seeing or talking to the other. Children may want to see one of their parents but feel unable to express this wish for fear of reprisal from the other parent, having become aware already (maybe subconsciously even), that the other parent would prefer the children not to, perhaps by having overheard adult conversations or simply by absorbing any vibes of bitterness and distrust simmering between parents.
Children might even say that they dont want to see the other parent. Whilst it is important to consider childrens wishes, appropriately to their age, parents should also examine their own motives and behaviour and ensure that their childrens wishes have not been inadvertently influenced by them and perhaps therefore not be truly representative of what the childrens wishes, and best interests, really are. Children can benefit greatly from reassurance in these circumstances that both parents actively want them to see the other.
The Legal Framework in relation to Children
The Court considers that the primary responsibility for bringing up children rests with both parents and therefore they will not make any Orders in respect of the children unless they consider that doing so would be beneficial to the children. This is called the No Order principle.
The Court will therefore generally not become involved in the arrangements for children unless the parties to the divorce specifically apply for it to do so. Having said that, when divorce proceedings are commenced the Court requires a form known as a Statement of Arrangements to be sent to the Court together with the Divorce Petition. This form gives details of the arrangements for the children, such as where they are to live, where they go to school and when they will see the non resident parent. This is a good opportunity in the early stages of the divorce to address the childrens arrangements with your spouse, if you havent already done so.
The Children Act 1989 introduced the concept of Parental Responsibility, which was a deliberate shift away from the idea that parents have rights over their children towards the idea that they have responsibilities towards their children. The Act defines the concept of parental responsibility as all the rights, duties, powers, responsibilities and authority by law which a parent of a child has in relation to the child and his property.
Both you and your spouse have parental responsibility as married parents automatically acquire this. What it means in practice is that you should both be involved in any important decisions being made in relation to a childs upbringing and care, such as decisions about education, medical treatment and religion. It also generally means that neither of you can take the child abroad without the others consent. Parental responsibility can be exercised by one parent independently, however, for example in relation to simple, everyday decisions such as keeping a sick child off school etc or in relation to emergency life saving medical treatment where the other parent cannot be contacted. However, the general idea is that both parents should be equally responsible for the childs welfare and involved in decision making for the benefit of a child.
Should there be any issues concerning the children that you and your spouse cannot agree about, including with whom they should live, then it is open to either of you to make a formal application to the Court. When the Court is considering any question relating to a childs upbringing or property, the welfare of the child is of paramount consideration. The Court considers a number of factors in deciding whether or not an Order should be made in respect of a child, which are as follows:
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The ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding).
- Their emotional, physical and educations needs.
- The likely effect on them of any change in their circumstances.
- Their age, sex, background and any characteristics of theirs which the Court considers relevant.
- Any harm which they have suffered, or are at risk of suffering.
- How capable each of their parents are or any other person in relation to whom the Court considers the question to be relevant is of meeting their needs.
The Court will not make an Order in respect of a child unless they consider doing so will be better for the child concerned than to make no Order at all.
The type of Orders that the Court can make in relation to a child include the following:
- Residence Order -
An Order settling the arrangements to be made as to the person with whom a child is to live.
- Contact Order -
An Order requiring the person with whom a child lives or is to live to allow the child to visit or stay with the person named in the Order or for that person and the child otherwise to have contact with each other.
- Specific Issue Order -
An Order giving Directions for the purpose of determining a Specific Issue which has arisen, or which may arise, in connection with any aspect of Parental Responsibility for a child.
- Prohibited Steps Order -
An Order that no step which could be taken by a parent in meeting his Parental Responsibility for a child and which is of a kind specified in the Order shall be taken by any person without the consent of the Court.
Child maintenance payments;
How much should I get and how do I get it?
With regard to child maintenance, this is calculated generally using the guidelines of the Child Support Agency. If the resident parent is not currently in receipt of Department of Social Security Benefit, the Child Support Agency do not automatically have to become involved and it is therefore possible to agree a figure for child maintenance between the two of you.
If this cannot be agreed, however, or the resident parent is in receipt of benefits, and an application was made to the Child Support Agency, the non resident parent will be paying maintenance of approximately 15% of their net income with regard to 1 child, 20% for 2 children or 25% for 3 or more children, subject to potential reductions dependant on the number of nights the children stay with the non resident parent and how many qualifying children the non resident parent has in their own household. For further information on child maintenance paid via the Child Support Agency, you can visit their website at www.csa.gov.uk. You can also use their website calculator to get a rough idea of the likely amount of maintenance payable. Alternatively, you can telephone them; the national helpline number is 08457 133 133.
If a figure for child maintenance is embodied within any Consent Order (See Financial Section), your spouse would be precluded from making any application to the CSA for one year from the date of the Order but not thereafter, unless he or she went onto benefits during the course of that year.
The non resident parent is liable to maintain the children until they reach the age of 17 or finish full time secondary education.
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