By Ruth Hawkins,

Children Panel Solicitor and Family Mediator

Turpin & Miller LLP

WHEN families split up, it is often extremely stressful and emotions can run high. When parents are separating and/or divorcing, and cannot agree on arrangements for their children, this adds to the pressure.

There are a number of ways to resolve issues such as where the children will live, and when and how they see their other parent.

If parents are able to reach their own agreement, then the ‘no order principle’ applies – where parents are able to reach their own arrangements the court will not become involved.

Parents can reach their own agreements direct with one another, or by using a family mediator. CAFCASS (“Children and Family Court Advisory and Support Service”) have produced lots of helpful guides, including a Parenting Plan to assist with this.

A family mediator would meet with both parents, preferably in the same room (but it can be separate – called ‘shuttle mediation’). The advantages to this way of resolving issues, include an often speedier more targeted or personal approach; the parents are in control of this process, whereas if they are using the court process, the court is in control; it can often be a cheaper process; legally aided mediation is available for those who qualify (provided there is a legal aid provider in the area!). It is also possible to arrange for child inclusive mediation with a qualified mediator, which can be a really good way of exploring the child’s wishes and feelings.

But not everyone is able to reach an agreement, and that it takes both parents to agree. Sometimes only one person is willing to try mediation, and sometimes, neither are, or there may be good reasons why it is simply not safe or appropriate.

In those instances, a parent may need to make an application for a Child Arrangements Order (“CAO”) to the court.

The courts no longer deal with ‘custody’ or ‘access’, or ‘residence’ or ‘contact’ and instead deal with the child’s arrangements. This change in terminology was brought in in 2014.

The court’s main consideration when deciding such matters, is the child’s welfare. This is set out in Section 1 of the Children Act 1989 which states that “…the child’s welfare shall be the court’s paramount consideration”.

The court is required to go through a ‘welfare checklist’:

p The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)

p His physical, emotional and educational needs

p The likely effect on him of any change in his circumstances

p His age, sex, background and any characteristics of his which the court considers relevant

p Any harm which he has suffered or is at risk of suffering

p 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

A short safeguarding report or letter will be filed with the court and served on the parents before the first hearing from CAFCASS, confirming whether there are any safeguarding concerns from the police or social services perspectives.