Disagreements and decisions about your children

If you are separated or divorced, you will probably have an arrangement with your ex-partner dealing with where your children live and how often they see their other parent. However, a specific issue might arise not covered by this agreement and on which you do not see eye to eye, for example if one of you wishes to relocate and the other objects. Discussing the issue with a family solicitor as soon as it arises will help you reach an amicable solution.

Robert Bellhouse, family solicitor with Ware & Kay in York & Wetherby explains more.

Disagreements relating to children

Both parents usually have parental responsibility for their children, which means a child’s mother and father both have a duty to make important decisions about how they are raised, educated and looked after. Even parents who are still together can disagree on issues relating to their children, but for separated parents reaching an agreement can sometimes be very difficult. Common areas of dispute include:

• relocation within the UK or abroad;
• taking children on holiday;
• change of surname;
• education and schooling, particularly whether a child should have a religious education;
• medical treatment;
• religious upbringing; and
• preventing someone from having contact with a child.

Reaching agreement

Where you and your ex-partner cannot agree on an issue, you should contact your solicitor as soon as possible. Family lawyers are experienced in dealing with disputes between parents and can help you negotiate with each other. If negotiation does not work, your solicitor will probably refer you to mediation where you can try to settle the matter with the help of an independent expert.

It is important to remember that attending a mediation information and assessment meeting is compulsory, and the family court will usually not accept an application unless you have done so. If you are able to resolve your dispute through mediation, it will also be quicker and less expensive than going to court.

Specific issue orders

If mediation is unsuccessful or inappropriate, the court can be asked to make a specific issue order.  This is a formal order under the Children Act 1989 and can relate to any aspect of parental responsibility. The court cannot use a specific issue order to resolve residence and contact matters, which must be dealt with separately under a child arrangements order.

A specific issue order can however be made alongside other orders, such as child arrangements or prohibited steps orders. For example, a specific issue order may be made for the return of a child who has been taken abroad without the other parent’s consent, together with a prohibited steps order preventing that parent from taking the child abroad again.

Applying to court

A child’s mother, father, and anyone with parental responsibility can apply for a specific issue order. Other people, such as grandparents, can also apply but they must first get permission from the court. When the court receives an application, it will arrange for a hearing to be held with both parents. An adviser from the Children and Family Court Advisory and Support Service (Cafcass) may also be at the hearing, or be asked to provide a report to help the court make a decision.

At the hearing, the judge will try to work out what you do and do not agree on, and if your child is at risk in any way. They will encourage you to reach agreement if this would be in the child’s best interests and if you can agree, the court will make an order setting out the details.

When the court will make an order

If you cannot agree at the first hearing, the judge will set a timetable for what happens next, which may include asking you both to go to mediation. If mediation fails, the judge will hold a final hearing where they will hear from both parents, and the Cafcass officer if necessary, and make a decision on what is best for the child.

The judge will always put the welfare of the child first, and they must consider:

• the child’s wishes and feelings;
• their physical, emotional, and educational needs;
• the effect that any change in circumstances may have on them;
• their age, gender, background and any relevant characteristics;
• any harm suffered or possible risk of harm; and
• how capable each of the parents is of meeting the child’s needs.

The judge will only make an order if doing so would be better for the child than making no order at all. If an order is made, it will usually last until the child is sixteen.

Enforcing an order

You can ask the court to enforce a specific issue order if your ex-partner is not following it, and the court has various powers that it can use. For example, it can order the surrender of a child’s passport where there are concerns that they may be removed from the country. The court can also require your ex-partner to compensate you financially where you have lost money because of their failure to comply. For example, if you missed a holiday because they did not follow the order.

If you require advice on a specific matter relating to your children or on any other family law issue, please contact Robert Bellhouse in the family law team on 01904 716062 or email robert.bellhouse@warekay.co.uk.