What about the Children?

Separated ? Divorced ? What about the children???

If you have recently separated from your partner, you are bound to be wondering what happens to your children. You will be wondering, if you will still be able to have regular contact with your children, how contact can be put in place when there is a communication barrier with the other parent and how do I solve such issues without having to spend endless amounts of money.

Disputes involving children upon divorce and separation are extremely challenging. These disputes involve custody (residence) or access (contact) now known as Child Arrangement Orders. A Child Arrangement Order deals with arrangements as to whom a child is to live with and or who the child will spend time with.

The Children Act 1989 provides that within any Child Arrangement Order application, a Court must treat the welfare of the children as paramount and should take into account a statutory checklist.

This includes:-

• The wishes and feelings of the child – in light of the child’s age and understanding.
• The child’s physical and emotional needs.
• The likely effect upon the child of any change in circumstances.
• The child’s age, sex, background and characteristics.
• Any harm which the child has suffered or is at risk of suffering.
• The capacity of each of the parents in meeting a child’s needs.

The Court has provided guidance for the purposes of contact. The Court has stated the following guidelines should be followed:

• Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.
• Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child’s welfare.
• There is a positive obligation on the State, and therefore on the recorder, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The recorder has a positive duty to attempt to promote contact. The recorder must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.
• The court should take both a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems.
• The key question, which requires ‘stricter scrutiny’, is whether the recorder has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case.
• All that said, at the end of the day the welfare of the child is paramount; ‘the child’s interest must have precedence over any other consideration.”

There are alternatives to resolving child disputes without necessarily having to go to Court. The law encourages Court proceedings to be the last resort. This means you are required by law to deal with such issues amicably.