Children
The Collaborative Law process can work particularly well to resolve problems relating to issues regarding the children of a relationship. It can go some way to avoiding long-term damage, which the formality of a contested Court battle might cause. Please click here for more information, call 01284 763333, or email eah@gross.co.uk.
The Children Act 1989 sets out what is called the Welfare Checklist. Whenever a Court is asked to make a decision about the welfare of a child, the Court must work through the Welfare Checklist before making its decision.
The Welfare Checklist says a Court must take account of:
- the ascertainable wishes and feelings of the child concerned (considered in the light of his/her age and understanding);
- his/her physical, emotional and educational needs;
- the likely effect on him/her of any change in his/her circumstances;
- his/her age, sex, background and any characteristics of him/her which the Court considers relevant;
- any harm which he/she has suffered or is at risk of suffering;
- how capable each of his/her parents, and any other person in relation to whom the Court considers the question to be relevant, is of meeting his/her needs;
- the range of powers available to the Court under this Act in the proceedings in question.
The Judge who hears the case will work through the Welfare Checklist before making a decision on any given issue relating to the child.
Married couples who are divorcing sometimes cannot agree between themselves suitable arrangements for the children, post divorce. This can lead to either or both parents making an application to the Court for a Residence Order (an Order determining who the children live with), or a Contact Order (an Order determining when the non resident parent sees the children).
Before the advent of the Children Act in 1989, who sees the children used to be called access, and who the children used to live with was largely what was meant by the term custody. Those terms now no longer apply.
Many couples live together, do not marry but do have children of the relationship. When an unmarried relationship breaks down, the same difficult questions arise so far as the children of the relationship are concerned:
- Who should they live with?
- How often should they see the non-resident parent?
- Should the non-resident parent be allowed to take the children abroad on holiday?
- Should the resident parent be able to move home within England and Wales, or even abroad?
If the unmarried parents cannot agree matters between them, an application must be made by either parent to the Court. The Court will apply the Welfare Checklist to the child's individual circumstances, before making a decision.
Children, whose parents are in a same sex relationship which breaks down, can also experience problems when their parents cannot agree where the children will live post-separation or whom they will see.
We are often asked to bring proceedings for the grandparents of children who are experiencing contact difficulties with their grandchildren.
Applying to the Court for an Order for residence or contact with a child in all of these circumstances is something which needs to be approached carefully and sensitively. Because each case is unique on its own facts, just as children are unique, it is vital that clients take advice early in the day before watershed decisions about a child's future welfare and wellbeing are made.
Please contact Elizabeth Hodder at eah@gross.co.uk or Julie McDonald at jm@gross.co.uk for further answers.