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Caught in the middle of their parents’ relationship breakdown, it is important that the best interests and wishes of any children are considered. If parents are separating, they will need to agree the arrangements for where children will live and how often they will see the other parent.
‘It is better for all concerned if this can be agreed amicably’, explains Martin Kelly a family law specialist with Dexter Montague LLP in Reading. ‘The courts do not usually interfere in arrangements for children, but if parents cannot agree one will need to apply to the court for a child arrangements order to determine what time the children should spend with each parent.’
In appropriate cases Mediation can assist parents in reaching agreement and if the parents agree it is possible for a specialist mediator to meet with a child to feed back the child’s views and thoughts to assist in the process of trying to agree matters.
If matters do proceed to court it will be only in very extreme cases might a child attend court and give evidence, for example if a serious allegation has been raised against a parent’s behaviour towards a child. Even then, any attendance at court is rare.
Although children do not usually have to go to court, it is important that their voice is heard and the court will always consider the needs of children to be paramount.
To ensure that the court has the right information, it will notify an organisation called CAFCASS that proceedings have been commenced. CAFCASS is an independent body, and its caseworkers undertake investigations for the court and make recommendations as to what arrangements are in the best interests of the children.
Initially, CAFCASS will make enquiries of the police, the local authority and possibly the children’s school regarding the safety of the children to understand if there are any reasons as to why the children might not spend time with their parents.
At this stage, the children’s views are not sought. As the case progresses, CAFCASS might be asked to prepare a more detailed report for the court – this might be if the initial report raises concerns about the possible safety of the children, or allegations of violence have been raised by one parent against the other. It might even be that in the case of older children, the court feel that their wishes and feelings are particularly relevant to the case.
To prepare this report, the caseworker may speak to the children to understand what they want to happen.
In that case, CAFCASS will arrange with the parent with whom the children live to meet with them – the length of the meeting will depend on the children. The meeting could be at home or at a neutral venue (such as a CAFCASS office or the child’s school). The children may be spoken to without a parent being present but that will always be dependent on each child and their willingness to speak to CAFCASS.
The views of the children are something the court will take into account, but it will depend on the age of the children. The views of older children are likely to be more persuasive on the court than a young child, for example a child aged 13 is more likely to be able to explain their views then a child of say four years old.
However, in all cases the court can make decisions which override the views of children if the court feel that is in their best interests.
Usually children do not need a solicitor. Where the disagreement between the parents is particularly entrenched or complicated, the court may decide that the children should be a part of the legal proceedings in their own right.
In those circumstances the court will appoint a guardian for the children who will in turn instruct a solicitor who will represent the children separately from the parents.
A guardian will be someone who works for CAFCASS or an independent social worker, but their role will be different to that of the caseworker who prepared the report for the court. The guardian will meet with the children more regularly and will represent them in court.
On rare occasions, a judge may meet privately with the children to find out what they want the court to do. This does not mean that the judge will agree with a child’s wishes and sometimes they must explain that they cannot fulfil their wishes.
Our key contact at DMP for further advice and assistance on children after separation is:
Martin Kelly, Partner
tel: 0118 939 3999
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.comments powered by Disqus