Child arrangements post divorce – what is best for the children?

Deciding the future arrangements for a child which meet their best interests is one of the most difficult and sometimes poignant duties of any family lawyer.

Who decides?

Cases involving the future of a child more often than not involve a dispute between the parents. Such disputes can be on a variety of issues, such as:-

  • Where is the child to live;
  • Should the child share his/her time between the parents and if so, how;
  • Is the child to continue with the same name;
  • Where is he/she to go to school;
  • Should the child come into contact with a new partner of one of the parents  and if so, when;
  • Has there been domestic violence or other behaviour which is relevant to the future of the child;
  • What will be the relationship between the child and the grandparents?
  • Whether a care order relating to a child should be brought to an end.

These and many other examples are, sadly, commonplace in those situations where the parents cannot find a solution by agreement between themselves. It is our job to try to find common ground between the parents and to help them resolve issues, sometimes with the help of, for example, mediation.

It is now established by research that, where the parents achieve an agreement, particularly one where the child is able to have a meaningful relationship with both parents, there is a much better chance of the arrangements working well and of the child being happy.

Sometimes, however, despite the best efforts of everyone concerned, it proves impossible for an arrangement to be made which both parents find acceptable. In many such cases, the issues between them will have to go to court to be decided by a judge.

What are the relevant factors which lead to a decision?

If a dispute concerning a child has to be decided by a judge, there are two overriding principles which are taken into account. These are:-

  • The solution must be the one that best suits the overall interests of the child; and
  • In deciding what the best interests of the child are, the court will take account of what is known as the “welfare checklist”, which is set out in the Children Act 1989.

The welfare checklist is a very sensible list of factors which must be considered. These include:-

  • The wishes and feelings of the child, considered in the light of the child’s age and understanding;
  • The physical, emotional and educational needs of the child;
  • The likely effect of any change of circumstances;
  • The age, sex, background and personal characteristics of the child;
  • Any harm which the child has suffered or may suffer;
  • The capacity of each parent to provide for the needs of the child.

It should also be said that the law requires the judge to consider whether it really is necessary for there to be a court order: in other words, consideration must always be given to whether, even at this stage, there is any prospect of the parents finding a solution themselves.

Third party investigation

In some of the more difficult and sensitive cases, there will be an investigation by an independent child social worker, most usually from CAFCASS (the Child and Family Court Advisory Service). The CAFCASS officer investigates a case from a child welfare perspective. The investigation includes conversations with each parent and others with whom the child may have come into contact, e.g. the school if attended by the child; a doctor if there are health issues; the social services department if it has ever been involved with the family, etc.

Once the social worker has completed the investigation, a detailed report with recommendations will be prepared and sent to the parents and to the court. It is important to emphasise that the report is only that - namely a recommendation to the court of the appropriate solution or, sometimes, a possible range of solutions. In the end, however, it is the judge who has to make the final decision.

Before making that decision, the judge will want to hear what each parent has to say about the problems which have prevented a solution being found by agreement.

In some exceptional cases, particularly those where there is a difference of opinion between the child and both parents, the court will appoint a person know as a “guardian” for the child. This person (again, invariably a child social worker) looks at the case specifically focusing on the views of the child - often the child will be represented in court by his/her own lawyer, instructed by the guardian.

Conclusions

Most parents find the experience of having to go to court over the arrangements for their child humiliating and daunting. The court will always do the best it can to help the parents participate in the case in a way that ensures that they have the chance to say anything which is relevant to the issues that have to be decided. However, even with this help, it is self-evident that the best course is for parents to spare no effort to find solutions themselves, just as they would if their own relationship had not broken down.

Our lawyers who deal with these cases have a wealth of experience and training on these topics.

Contact Rachael 

For more information or some preliminary, confidential advice, please contact Rachael Shearmur, solicitor in the Family Team, on +44(0)1392 687634 or email Rachael.shearmur@michelmores.com