Making child arrangements if you are divorced or separated

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In this episode our experts share their expertise on child arrangements and how they are made, whether that be in or out of court.

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In this episode:

  • We define what the term child arrangement means.
  • We outline step by step the process of making child arrangements.
  • We outline the process in place in the situation where parents agree to the child arrangements.
  • We outline the process in place in the situation where parents disagree with the child arrangements.
  • We discuss the process of mediation.
  • We explain what a child arrangements order is and when this should be considered.

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This episode is part of our Talking family and wealth podcast series. Learn more about the series and what we cover. This podcast is available on iTunes, Spotify and Soundcloud.

Read the transcript:

Catriona Attride: Welcome to Talking Family and Wealth. You're straight talking guide to dealing with matters that are at the heart of the family in terms of planning for the future and protecting assets and resolving difficulties that might arise in family relationships. My name is Catriona Attride and I am a private client lawyer with over 20 years experience supporting clients in their estates and tax planning. In each episode, I'll be joined by an expert and together we'll lift the lid on how best to handle everything from inheritance to divorce. Along the way, we'll share some of the situations we've encountered, some good, some bad and many ugly but all useful in helping you to protect your family and wealth. Welcome back to the podcast. I'm joined today by Amrit Hunjin who is a senior associate in our family team. Welcome along today, Amrit.

Amrit Hunjin: Hello, Cat.

Catriona Attride: How are you doing?

Amrit Hunjin: I'm fine, thanks. How are you?

Catriona Attride: Yeah. Good, thank you. So I think our topic of conversation today is around arrangements for children, if you separate or divorce. Because it's understandably very contentious in a lot of cases and sometimes it can be, I suppose, more tricky to navigate than the financial side. So hopefully, you'll be able to give the listeners an idea of what they might face and the options that are available to them in trying to sort things out in the most, I don't know, I suppose, amicable and least stressful way.

Amrit Hunjin: No, absolutely. And whether separating as an unmarried couple or going through a divorce, children are most likely to be at the forefront of everyone's mind to make sure that they can be looked after in the right way and prioritised as part of all discussions.

Catriona Attride: Yeah, absolutely. Because it... I mean, I suppose you're also navigating their feelings and emotions as well because they're going through a massive upheaval with parents breaking up as well. So you've got all the emotions going on, haven't you? Your own and theirs.

Amrit Hunjin: Absolutely, yeah.

Catriona Attride: So I guess it's all about prioritising the children and making sure that we can make sure they're okay. Whilst also trying to get arrangements in place as quickly as possible. So I mean, what is always your first advice to a client who comes in where perhaps they and their spouse are struggling with this issue and need some help. Is it straight to court or what are the options?

Amrit Hunjin: Not at all. There are lots of options that can be explored before anyone has to start down the court route. And the first of advice always given is that matters need to be dealt within a child focused manner.

Catriona Attride: And what does that mean?

Amrit Hunjin: It can be very difficult for parents to separate their own unhappiness and distress from dealing with what arrangements best suit their children. But child focused generally means that parents will set aside their own feelings and look at what's in the best interest of their children and enter into arrangements that don't look to punish one parent or penalize them just because another parent is hurt. So it's trying to put your children first.

Catriona Attride: Which I know from sort of being on the periphery of these matters, working with you guys and people I know who've been through it, it can sometimes be really tricky, can't it?

Amrit Hunjin: It can, it can. And early advice or guidance is always really helpful. And we, as solicitors can give some initial advice and views about how to navigate the issues and how to ensure that the children are prioritised. But quite often, if there are issues of poor communication between the parents and frankly, a good sensible chat between them both with an independent person there, that can be really helpful. And in these circumstances, we refer clients to family mediation.

Catriona Attride: Okay. And how does family mediation work? Because I think sometimes people get put off by the idea of mediation, because they think they're basically going to be lumped in a room with the spouse or partner that they really don't like anymore. And that they've just then got to thrash it out. Is that how it looks?

Amrit Hunjin: Not always. So family mediation is a process where there's an independent and professionally trained mediator that's involved to help you work out what's best for your children and possibly finances in certain circumstances. Family mediators are usually lawyers who have also trained. So they are fully aware of the legal position and hopefully cutting through the issues and facilitating a really sensible discussion. In some circumstances where perhaps one party feels that they may well be talked down to, or there isn't going to be a sensible conversation that can be had with their ex, mediators can facilitate shuttle mediation so they can be in separate rooms. And nowadays, a lot of mediation in the current climate is held online.

Catriona Attride: Of course.

Amrit Hunjin: So that can be quite helpful to keep a little bit of distance, but also keeping focused on what needs to be discussed.

Catriona Attride: Yeah, absolutely. And I suppose it's always going to be better if you try and come to the arrangement yourself rather than expecting a judge to do it for you.

Amrit Hunjin: Absolutely. And agreements always tend to be far better adhered to in the long run if both parents feel that they've had a say.

Catriona Attride: Yeah because they've actually actively participated, haven't they, isn't it? And I mean, are there times where mediation, you just wouldn't even entertain it?

Amrit Hunjin: I would say mediation isn't appropriate if there have been cases of extreme domestic abuse or where there are perhaps significant safeguarding issues for the children. This might mean that that urgent court action is unfortunately required because that is the best thing for the child. But by and large, if there is an appetite for both parents to talk things through pragmatically and in that child focused manner that we talked about, mediation can be a really useful tool.

Catriona Attride: Yeah, of course. So if you've been through the mediation process and you haven't managed to come out the other side with a suitable agreement, discussions have fallen down. Then it's then up to either parent to make an application to the court, I suppose. Is that the next step?

Amrit Hunjin: Absolutely. So if mediation does fail and it's important to note that neither parent will be forced into any decision by a mediator. But if it just gets to a stage where there is just not any possibility of an agreement being reached or perhaps stepped up to an agreement that both parents will be happy with, then court applications can be made. And attending a mediation session is more often than not a requirement before any court application is made. Unless there are really urgent circumstances such as a child potentially being moved without the other parents' consent or extreme issues of safeguarding.

Catriona Attride: Yeah, of course. So if we end up in this unfortunate situation where one of the parents is looking to make an application to the court, if you could sort of talk us through the steps in terms of what happens. Because obviously, you don't make an application, then go straight to a final hearing. What are the steps that happen?

Amrit Hunjin: There are various steps to the court process. And the view is that through having say two or possibly three hearing, in most cases, it's hoped that the issues can be narrowed. And there will also be input, not only from the court, but from a body called CAFCASS, who are a court appointed social worker effectively. They will speak with both parents, they may well speak with the children and give their recommendations on the arrangements that they think meet the children's best interests.

Catriona Attride: Okay. So you've got that third party involvement who is being more impartial.

Amrit Hunjin: Absolutely. And that can be really persuasive. So if a mother or a father or a parent, starts the application process, the court will immediately make a referral to CAFCASS to let them know that the application has been made. And initially, CAFCASS will produce a letter called a schedule two letter that will set out the broad concerns of the parents. And they're usually ascertained over the phone and there will also be basic DBS checks as well undertaken so that we know that there are no police issues or social services issues. And then the matter will be listed for a first hearing, which is a bit of a mouthful, but it's called the first hearing and dispute resolution appointment.

Catriona Attride: Okay, wrap your teeth around that.

Amrit Hunjin: Absolutely. Commonly known as FHDRA. And the first hearing will allow the court to check that there are no safeguarding issues, as we said, that might arise through those CRB checks. And also, perhaps deal with the interim arrangements until a longer term solution can be reached. And the court will also make any other further directions and timetable other issues. So if one parent thinks that it's necessary for medical records or school reports to be obtained, the court will give a timetable for that to be provided.

Catriona Attride: Okay. So this is the sort of preliminary, let's work out what we need to do to move this forward hearing.

Amrit Hunjin: Absolutely. Yeah.

Catriona Attride: So then what's next?

Amrit Hunjin: Then the case will be listed for a dispute resolution appointment. And this should be at a stage in the proceedings when the outstanding information has been provided and the real focus on this day is to negotiate. So the court will want to know what has happened in the meantime, if there are any issues that have been raised. And it may well be that at this point, Cafcass have been ordered to do a further and more detailed report for the parents and for the courts. And this may well have involved CAFCASS actually coming out to the home, speaking with the children, seeing what family dynamics are like. And they use really child focused tools. So the dispute resolution appointment is really there to resolve or narrow the issues. And usually, most cases will settle at this point because if they don't, there would need to be witness statements provided and the matter listed for a final hearing. Where ultimately both parents and the CAFCASS officer and potentially any other experts that have been involved, they would be required to give evidence on the stand. So it's a little bit like a trial.

Catriona Attride: Yeah. And I suppose once you've seen what CAFCASS are saying, that must be quite persuasive to each party to think, right, we probably need to resolve this now because I guess, the judge is going to be giving quite a lot of weight to the CAFCASS report.

Amrit Hunjin: They do, they do. CAFCASS are wholly impartial, they're independent. They are properly qualified to do the work. And whilst their recommendations are not conclusive and in certain circumstances you might end up with a report that's perhaps, sadly has not identified or delved into an issue enough. But I would say that those cases are quite rare. So the judges and the magistrates essentially, put their trust in this independent person to give proper feedback. And if they have visited the family and prepared a full section seven report, that looks at all the factors that the court will take into account. Such as the children's ages, perhaps their wishes and feelings, if they have any special educational or developmental requirements and the effect of any change of circumstances on them. That then gives a really comprehensive document to the court that a judge can usually rely on heavily.

Catriona Attride: Okay. So if they don't obviously, settle at this point, then we're going to the final hearing and then it's in the judge's hands and they will make their decision. And that's then going to be binding on the parties.

Amrit Hunjin: It will be binding. And at any stage, whether you have a final order made or an interim order, as you go along through the proceedings, both parents are obliged to abide by those terms. And the court can impose sanctions on parents that don't abide by those orders.

Catriona Attride: Okay. What sort of sanctions would they be?

Amrit Hunjin: So enforcement proceedings can be brought and the court can come down heavily if a parent has not got a reasonable excuse or justification for abiding by the orders. In extreme circumstances, if there are cases where one party alleges that they've been alienated from their children, the court can even order a change of where the children live. Because parents are obliged to promote positive relationships with the other parents, if it's safe to do so.

Catriona Attride: Because ultimately, it's in the child's best interest.

Amrit Hunjin: Absolutely, yeah. Until the court can say that promoting such contact isn't safe. And most of the cases that we deal with don't include significant safeguarding issues, which may be an exposure to potential abuse, whether emotional, physical, sexual. If the absence of any of those concerns, then the court will expect both mom, dad, or parent to promote a positive relationship between the children and the other.

Catriona Attride: And is this process the same if there are safeguarding issues or is it different?

Amrit Hunjin: If there are safeguarding issues, we would suggest that these are flagged in the initial court application and there is a separate form to complete. And if there is perhaps some police evidence that can corroborate those allegations, then that should be brought to the court's attention or any medical evidence that would also corroborate the allegations, that will be really relevant. But if there is a dispute about whether or not incidents of say abuse or emotional harm took place, then the court might list a separate hearing called a fact finding hearing. And the court here will need to assess whether or not those incidents did in fact occur. And they will need to say, are we satisfied on the balance of probabilities that that occurred? So i.e. are we more persuaded than not that that incident occurred? And if so, how will that have an impact on the longer term arrangements for the children? And does it impact on whether or not there needs to be supervision of the contact or the risks managed in a specific way?

Catriona Attride: Okay. So there's quite a lot to think about, isn't there? And it sounds as though you're definitely better off trying to sort things out before the hearing, if you can. I mean, in your experience, how many of these sorts of cases or do many of these cases actually end up at a final hearing or do they tend to come to an agreement?

Amrit Hunjin: Usually, matters will settle around the second hearing being the dispute resolution appointments. The reason being is that at that stage, a lot of the information that was set out at the outset has been provided. So parents will have had the opportunity to provide documents or obtain letters from schools or teachers or say any counselors for the children. And as with mediation, if things can be negotiated at that stage in the proceedings, it usually makes both parents feel that they're a little bit more in control.

Catriona Attride: Yeah, of course.

Amrit Hunjin: That they've had a say and that they've been heard. So it's certainly preferable to try and do that rather than have an order imposed on you at a final hearing. So it is quite rare that that matters will proceed to that stage, but certainly not unheard of.

Catriona Attride: So when we come to sort of specific issues and I suppose thinking about the time of year that we're recording this where Christmas is around the corner. Do arrangements fall down at that time of year? Do arrangements specify what happens at Christmas say or other special times of year? And what happens if they can't come to an agreement?

Amrit Hunjin: So yeah, Christmas is often a very contentious issue. It's clearly special family time for both sides of the families. And it can be a real issue of contention. So if already in court proceedings, it's sensible for any hearing in advance of Christmas to try and address the issue. Otherwise, it is possible that urgent applications can be brought. And the courts are quite used to having a week before Christmas, where there are lots of urgent about Christmas compact. What I would say is, again, being pragmatic and child focused is best. Because from a cost perspective as well, deciding what time a child gets dropped off on Christmas day or Boxing Day, may not be a cost efficient way to deal with it.

Catriona Attride: Yeah, of course.

Amrit Hunjin: And certainly raising the temperature before Christmas never helps.

Catriona Attride: No.

Amrit Hunjin: And there is no right or wrong. Each family's Christmas arrangements are different. Some parents like to allow the children to have two Christmases. So one parent might have them Christmas Eve and Christmas Day, and the other one Boxing Day and the 27th. Some families will say, we will have the children in the morning and they'll be dropped of in the afternoon.

Catriona Attride: So split the day, yeah.

Amrit Hunjin: Yeah. So again, it is always best to have advice from your solicitor and put forward arrangement proposals that are really going to be sensible. And it's quite usual as well for these to alternate year on year. So that the child effectively has Christmas Day with one parent one year and the other the next. And this can be a really helpful way of clarifying things in the long run and no one feels that they're losing out.

Catriona Attride: And is that something that... I mean, I know we're focusing on Christmas, but it applies to other summer holidays and that sort of thing. But is it usual that in the agreement that's made, in the order that's made that this sort of thing is covered? Do you often find a provision for Christmas and Easter and summer holidays and things in it is set out?

Amrit Hunjin: Definitely. If parents can't be flexible and usually if there is litigation, we may have gone past that stage. So orders can be as prescriptive as the parents might need them to be. So it's quite common for a long term order when it's made to say, this is the arrangement in term time, this is what's going to happen at Easter and half term, Christmas holidays will be split, week one and two with mom, week three and four with dad, for example. And it will also say what's going to happen Christmas, birthdays, Father's Day, Mother's Day or any other celebrations that might be unique to their family.

Catriona Attride: Birthdays I suppose, as well, can be contentious as well, I guess.

Amrit Hunjin: Yeah. Yeah. But really children get two birthday parties each year so they should be happy. Yeah.

Catriona Attride: Yeah. Absolutely. So, I mean, and there's quite a lot to think about, isn't there? But I think the general sense that I get, and I think your advice to clients from what I'm reading is let's try and sort this out ourselves without getting to the point where we have to get third parties involved to do reports. Obviously, there are situations where that is necessary and appropriate because of the circumstances. But if mediation can get you there, you can cover off all this stuff in the mediation, the holidays, the Christmases, the birthdays, and come up with a really good agreement that you both contributed to in which you can both live with.

Amrit Hunjin: Yeah. Yeah. If parents can try to have an informal arrangement between them or if they can agree to enter into a parenting plan that can be as far reaching as they want it to be, that's always going to be the most useful way of dealing with things. And angry parents are not going to be good for a child. They don't want to see mom and dad arguing on the doorstep or feel that they're put in the middle and they're conflicted. So usually, if there can be a discussion, whether facilitated by lawyers or a mediator, that's going to be preferable.

Catriona Attride: Yeah, of course. Of course. But then you must... I mean, we all know that there are times where a parent just can't put the child's needs above their feeling or their anger and which can understand how people feel so strongly and it is very difficult balancing those needs. But are there adverse consequences to somebody who is clearly fighting the fight for themselves and not the children and this isn't about the children's best interest?

Amrit Hunjin: We would hope that a good CAFCASS officer would be able to drill down on some of those issues. And certainly we will pick up on that in solicitor's correspondence and the more evidence or information to support a position that can be collated, the better. So if a parent feels that they're being penalized and the children are being used as a weapon, then ideally we would want to see this supported by text messages or emails between the parties. So that we can try and establish as early on that this isn't a parent who is child focused. And hostile parents can range from anything from a parent who is perhaps snappy or hostile at handovers to the very extreme of actually alleging that a child is being alienated from the other parent. And as I said, in cases of alienation, the courts can take some time to grapple with that issue. But once established the court can make orders for parents not to see children or for a child to go and live with the other parents, if it is so detrimental to the children's emotional harm.

Catriona Attride: Because this is all child focused at the end of the day. So it has to be what's best for them, doesn't it?

Amrit Hunjin: Absolutely.

Catriona Attride: Yeah. And I think actually, we're going to be talking on a later podcast on the specific issue of parental alienation, which is a big topic on its own and is complex. So I think, we're touching on it a bit here, but we will definitely be talking about that again. So I think that's really helpful Amrit to talk us through the process and give us an idea of what's in involved. And I think you've given some good advice really, to people listening, just in terms of steering them in terms of what they might want to try and do. And I think the biggest message is that thing of trying to put yourself in the child shoes as much as possible and keep animosity between yourselves to the other side, if you can.

Amrit Hunjin: Yeah, of course. And it's just important to remember that if arrangements have been agreed, even if the financial side of things still needs to be resolved, but you are able to come to an agreement about your children, solicitors shouldn't be there to rock the boat. And the court won't get involved if there is no need to. So usually, sensible parents will be able to sort out the day to day arrangements for their children and deal with issues of schooling and how they're going to be raised between them. But it's not always that easy. And if there is a particularly acrimonious separation, it can be difficult but that is what we're here for and to guide on as to how to try to compartmentalize the two aspects of an adult relationship breakdown and what is important for your children. And by and large, with a bit of assistance from a mediator and some good legal advice, we hope that that matters don't proceed to the court stage. But we have that court system there as our backup.

Catriona Attride: Yeah, of course, so there is an end game, isn't there?

Amrit Hunjin: Absolutely.

Catriona Attride: That's brilliant. Thank you so much for joining me today, Amrit and I look forward to speaking to you again soon.

Amrit Hunjin: Thank you.

Catriona Attride: Thank you.

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