When the family breaks down and there are children, whether the parents are married or not, the parents are advised to try to reach an agreement on where the children will live: whether they will live with one parent and spend time with the other parent or else share their time between their separated parents’ homes. Older children are often able to make decisions for themselves or make arrangements to go between homes themselves once their parents live apart - so called “voting with their feet”. Younger children and babies cannot and they need their parents to make arrangements in their best interests for them. These parents are advised to try and reach an agreement in writing, called a “parenting plan”.
Conflict between parents hurts the children. It is very important that everyone has some certainty about the future. A written Parenting Plan, worked out between parents, will help clarify the arrangements you need to put in place to care for your children. A Parenting Plan is a voluntary written plan worked out between separated parents covering the practical issues of parenting. The plan includes practical issues in relation to the children such as living arrangements, education, healthcare and finances and it aims to assist parents in resolving arrangements amicably and informally. It can also include details such as arrangements to spend time/ be cared for by the extended family members, such as grandparents and other family members. This is incredibly important when there have been issues with extended family or religious or cultural issues in the marriage which may become an even bigger between the parents once they are separated and the children are going between two homes and two families. The idea of the parenting plan is that both parents know what is expected of them and it is a valuable reference as time passes and circumstances change.
Parenting Plans can be worked out between parents:
- on their own; or
- with help from a dispute-resolution service or
- with help from a solicitor and/or barrister.
Working out a Parenting Plan on your own
A google search will bring up plenty of parenting plan templates. One of the best templates are freely available on the government website operated by the Children and Family Court Advisory Support Service (referred to as Cafcass ). Cafcass was set up to represent children in the family court in England. They are independent of the courts, social services, education and health authorities and all similar agencies. Their duty is to safeguard and promote the welfare of children going through the family justice system. Cafcass have produced a parenting plan template which is accessible on their website accompanied by a guidance document.
If parents are not able to reach an agreement on their own, assistance can be obtained from a mediator or else from a lawyer. A mediator is an independent third party who is not legally trained unless they are also a qualified barrister or solicitor. Their role is to facilitate negotiations between parents with aim of assisting them to reach agreement. This is not often appropriate if the dynamic between the parents is such that one parent is domineering and/or abusive and refuses to listen and agree. This is where a lawyer is of great assistance.We can help you negotiate arrangements for your child(ren) which is in their best interests and place this in a written parenting plan to provide you and your child with stability and peace of mind living as a separated family.
Making an application to the Family Court – Child Arrangement Orders
If you are not able to agree a parenting plan, whether on your own or using a mediator or lawyer the next step may well be to make an application to the family court seeking a court order regulating the arrangements for your children when you are separated. The family court can be asked to make a Child Arrangements Order in respect of your child. This is an order that regulates with whom a child is to live, spend time or otherwise have contact, and when a child is to live, spend time or otherwise have contact with any person. The family court is operating remotely at the moment during the pandemic, by telephone or video. The application is made electronically online by a form called a C100. It costs £215 to apply for a court order. Once an application is made the court will list the application for a court hearing called a ‘directions hearing’ with both parents.
Before the first hearing the court ask cafcass to do the following:
- Safeguarding checks: Carry out checks with the police and the local authority to find out whether there are any known safety or welfare risks to your children.
- Telephone interview: In most cases, cafcass will telephone both parents or carers to find out if either of you have any concerns about the safety and welfare of your children. You are unlikely to have a home visit before the first hearing. Only people who are parties to the case will be interviewed. If one of the parties wants to submit a statement from a third person, then they can do so and it becomes part of their case. This phone call may be made close to the hearing date, so don’t worry if you don’t hear from us immediately after receiving our introductory letter.
- Safeguarding letter: At least three days before the first hearing we will provide the court with a short report on the outcomes of the safeguarding checks and any child welfare issues raised in the telephone interviews with you and the other party: this is known as a safeguarding letter.
The Court Hearings (after an application)
At the hearing, a judge or magistrate will try to work out:
- what you can agree with the other parent
- what you cannot agree
- if your child is at risk in any way
They’ll encourage you to reach an agreement if it’s in the child’s best interests. If you can, and there are no concerns about the child’s welfare, the judge or magistrate can end the process. The court will make a consent order which sets out what you’ve agreed, if necessary. If you cannot agree at the first court hearing the judge or magistrate will set a timetable for what happens next.
If an agreement cannot be reached or there are concerns about the welfare or safety of your children, the court may:
- order a further hearing – such as a mediation type hearing (called a dispute resolution appointment hearing) or a fact-finding hearing if there have been disputed allegations that might affect the outcome of the case, such as of domestic abuse,
- ask cafcass to carry out a more detailed work with your family and to write a report about your children’s welfare (known as a section 7 report).
- Order a final hearing to make a final order. A judge or magistrate will only make an order if they think it’s in the child’s best interests.
The court order regulating where your child lives is called a Child Arrangement Order. It lasts until your child is 16 years old unless your child has special needs.
Cafcass advise parents for child arrangements during the pandemic
Children should maintain their usual routine of spending time with each of their parents. If there is a parenting plan or Child Arrangements Order in place this should be complied with unless to do so would put your child, or others at risk. This will help your child to feel a sense of consistency, whilst also reassuring them that the parent they don't always live with is safe and healthy.
If you're not able to maintain your child's routine due to illness or self-isolation, or non- availability of people who ordinarily support your child’s contact, then communicate clearly and honestly with your co-parent. If it is not safe for you to communicate directly (for example, if there has been a history of domestic abuse) then consider using a trusted third party to help you.
If any court directed spending time arrangements are missed, think about how you and your co- parent may be able to ‘make up’ your child’s time after the restrictions are lifted. Remember, any rearranged spending time arrangements should always be for your child’s benefit and should not be used as a source of tension or conflict – especially at a time when your child is likely to be feeling anxious about the effects of the pandemic.
Maria is the joint head of the Family Team at 5SAH and practices exclusively in family law with a specialism in high end/ big money financial remedy applications and (private law) children work. She accepts instructions to act through a solicitor or directly from members of the public on a Direct Access basis.
Gemma is an experienced family law barrister and is regularly instructed in all aspects of family law. Gemma is ranked in Chambers & Partners and the Legal 500 for her international and extradition work, which often overlaps into her family work.
To discuss your case further with our dedicated family clerks, their full contact details are below. We operate a fully remote service, which can be tailored to suit individual needs.