One of the most challenging aspects of a relationship breakdown can involve the couple’s children, whether from within a marriage or a cohabiting relationship.
The unmarried father (since December 2003) obtains parental responsibility for a child by ensuring that he is present when his name is recorded as father at the registration of the birth. Otherwise the father may enter into a Parental Responsibility Agreement with the mother which is a straight forward document obtained from your local Magistrates or Family Court office. Finally, if the mother refuses to consent to the father obtaining PR, an order can be granted by the Family Court. Provided the father has shown some commitment to the child, it would only be in exceptional circumstances that a PR application would be turned down.
Fathers can still make applications to the Family Court (the chosen jurisdiction will be where the children live) without having PR but they need to be granted leave first.
Court proceedings concerning children are usually started when the parents cannot agree on how much time their children should spend with each of them or where the children should live. Residence and contact orders have now been replaced with an umbrella Child Arrangements Order which deals with every aspect of the care of children, although not child maintenance (please see below).
A Child Arrangements Order will identify which parent is considered the primary carer whose responsibility then is to make the children available to spend time with the separated parent. Shared care or shared residence as it is variously called, can work in some circumstances and it does not have to constitute exactly 50% equal time living with each parent. Such arrangements don’t suit all families and it depends on the location of the two homes and in some respects, the age of the children (shared residence tends to work better with younger children). There also needs to be a good working relationship between the two separated parents for shared residence to succeed.
How the parents get on is the key to any legal question to do with a child – the agendas of adults in dispute will be very much secondary to the interests of their children, which are considered paramount in any court decision.
We aim to find the least conflictual way of resolving problems concerning your children, whether you are the main carer or are trying to have more contact with the children who you don’t live with. Mediation and dispute resolution are the buzz words of the day and if you are using the collaborative process for your divorce or separation, the lawyers will use their training to reach an agreement on all child based issues as well. Outside experts such as child and family therapists, can be invited to join the proceeds if required.
In non-collaborative cases, parents will always be advised to attempt mediation to resolve their disagreements in children issues and we will provide you with all the information necessary to make your choice of mediator. If, unfortunately, there is no other solution but to put the matter before the Family Court, the Applicant parent will in any event have to attend a mediation appointment, which is called a MIAMs (Mediation Information and Assessment Meeting) to receive a form endorsed by a professional mediator for inclusion in the Children Act application to be submitted to the Court.
Belinda Smith has been a child law specialist for over 20 years and Kelly Trevett shares extensive experience in children matters. Together we will advise and support you in any legal question concerning your children including offering representation in Court if you have decided mediation will not be the immediate solution to your case.
Most claims for child maintenance are handled by the CMS (Child Maintenance Service, formerly the CSA) and are calculated on a precise formula, based on a percentage of gross income with some deduction for contact time and exceptional payments. You can check on your likely entitlement or liability through the CMS website. Changes in the law in October 2008 allow for greater flexibility for parents in receipt of benefits and for maintenance agreements to be drawn up between parents instead of applying to the CMS.
There is a significant financial incentive for separated parents to reach an agreement between themselves as to the correct level of child maintenance. The CMS will provide free of charge an assessment of the correct level of maintenance to be paid, but if the parent with care wants that to be collected and paid out by the Service there will be heavy deductions made at either end, particularly from the payer.
The court will record maintenance payments for children in court orders if both parties agree on the terms and either party can apply in the future for variations (upwards or downwards). For one year only, such orders prevent any application by the “parent with care” to the CMS.
For separated parents who are not married, the parent with care may apply for maintenance under Schedule 1 of the Children Act 1989, which could include applying for lump sum payments for a child and the provision of housing. These can be complex cases and we are able to advise you on the merits of bringing such applications or the merits of what to do if you are at the receiving end. (Married parents can also make such applications but maintenance for children would usually be dealt with in the global divorce settlement).
We can also help you with queries arising out of CMS assessments and representation at appeal tribunals.