In England the concepts of custody, care, control and access were abolished in 1991 and two main concepts were introduced: Residence and Contact. The concepts of Residence and Contact have now been abolished and replaced by a Child Arrangements Order and a presumption of shared parental involvement in the life of a child.
If you and your partner are separating and you are unable to agree the arrangements for your child/children together you can in the first instance try and resolve matters through Mediation or Collaborative Law.
If you cannot resolve matters at mediation or through the collaborative process, or if such options are not suitable in your circumstances, you can apply to the Court to determine matters.
If you are unsure of the right option for you to find a solution to the arrangements for your child/children please contact a member of our Family Law Team so we can help you make an informed decision.
The Court have the power to make different types of orders relating to the arrangements for children:
- Child Arrangements Order which is an order regulating with whom a child should live, spend time or otherwise have contact with.
- Prohibited Steps Order which limits certain parental rights and duties e.g. not to take the child out of the country and
- Specific Issues Orderwhich provides for particular steps someone is to take e.g. that the child will go to a certain school.
- Special Guardianship
When determining issues relating to the upbringing of a child the Courts give paramount consideration to the child's welfare. It follows that the central question posed by Courts is "What is in the best interests of the child?"
The Children Act 1989 sets out a number of factors that Courts should have regard to in trying to determine what is in the child's interests:-
(a) The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding.)
(b) His physical, emotional and educational needs.
(c) The likely effect on him of any change in his circumstances.
(d) His age, sex, background and any characteristics of his which the court considers relevant.
(e) Any harm which he has suffered or is at risk of suffering.
(f) How capable each of his parents and any other person in relation to whom the court considers the question to be relevant is of meeting his needs.
(g) The range of powers available to the court under this Act in the proceedings in question.
Courts will also have regard to the general principle that any delay in determining issues relating to the upbringing of a child is likely to prejudice the welfare of that child.
There is a presumption that the court should not intervene unless it is in the best interests of the child. Therefore the court will only make a order if there is a dispute, or if it is in the particular interests of the child to make an order nevertheless. So for example if on a divorce or civil partnership dissolution the parents agree that the children will live with the mother and spend alternate weekends with the father, the court will not make an order.