Child Arrangements Following Divorce

Child law FAQs

• My ex doesn’t even pay child maintenance so what rights do they have?

  If your ex has Parental Responsibility, their rights related to that will not be affected by their failure to pay maintenance.  The child still has a right to have contact with them and your ex still needs to be consulted, and indeed consent, to important decisions about the children’s upbringing, for example a change in school, medical treatment or relocation.

• My children never see their father, can I change their surname?

  Changes of surname need to be made with the consent of everyone who has Parental Responsibility.  If the father does not consent, you will have to apply to the court.  The courts are often reluctant to allow name changes and you would need to show it was in the child’s best interests and that their welfare would be improved by the change.  The courts will consider the Welfare Checklist and place significant importance on maintaining the link with the father and his wider family by the use of the name.  Only in very specific and extreme circumstances will they allow the name to be changed completely.  Double barrelled names are likely to be considered more favourably by the courts.
  

• I have met someone who lives abroad and we want to live together. Can I take the children?

  There may be many reasons why you want to move and live abroad but if the other parent won’t agree and the matter is before the court, their only concern is the welfare of the children as assessed in line with the Welfare Checklist.  You will need to set out how a change in school, home, culture and a significant disruption to their relationship with the other parent can be managed and why it is in the children’s best interests.   These cases are always so fact specific and take approximately 6 months to conclude, it is therefore wise to seek legal advice on the merits of your case early on.

• My ex is making allegations against me and limiting my contact so that I can’t even have my son overnight. What can I do?

  The first step is to try mediation to see if you can address whatever concerns your ex has and why she is limiting your contact.  If you cannot agree a way forward then you can apply to court for a Child Arrangements Order.  The court will have to consider the Welfare Checklist and in particular what your ex is alleging, whether there are any risks to your son in having overnight contact, and whether the restrictions your ex is placing on your contact are necessary and proportionate to those risks.

  If your ex is making specific allegations against you which you deny and the court feels are essential to the case, then they will have a Fact Finding Hearing in order to decide, on the balance of probabilities, whether the allegations are true.

• I have been ordered to attend a Separated Parenting Information Programme. What is it and do I have to attend?

  It is a free course designed to help parents think about what children need when their parents separate and how to improve communication and co-operation, and reduce conflict.  Both parents must attend but can, and generally do, attend different sessions. The programme is delivered in one 4 hour session or in two 2hour sessions in consecutive weeks.  It is usually delivered to a group of up to twelve parents and you must attend the whole programme. The course provider will report to the court if you do not attend and the court may hold you in contempt of court.

• I have separated from my partner and the children see him every other weekend. I want to move back to my where my parents and family are in another part of the country so that I have more support around me. Can I he stop me?

  Yes.   Even though you are not moving abroad you are still moving the children from their home, school, friends and father.  If he will not agree for you to go and you have explored all the issues through mediation, then you will need to make an application for permission to move with the children.  If you do not make an application but the father fears that you are going to move anyway, he can apply for an order preventing you from moving.  The ultimate decision will be for the court and they will have to apply the Welfare Checklist and determine what is in the child’s best interests.

• What is the Welfare Checklist?

  This is a list of things that the court needs to consider whenever it makes a decision in respect of a child.  It is set out at S1(3) of Children Act 1989 and is as follows:

  1. The ascertainable wishes and feelings of the child concerned
  2. The child’s physical, emotional and educational needs
  3. The likely effect on the child if circumstances changed as a result of the court’s decision
  4. The child’s age, sex, backgrounds and any other characteristics which will be relevant to the court’s decision
  5. Any harm the child has suffered or maybe at risk of suffering
  6. Capability of the child’s parents (or any other person the courts find relevant) at meeting the child’s needs
  7. The powers available to the court in the given proceedings
• What is CAFCASS?

  CAFCASS stands for Children and Family Court Advisory and Support Service.  

  It is an organisation set up specifically to represent the voices of children within the family justice system. CAFCASS works independently of the court, social services or any other government agencies.

  Its role is to:

  • safeguard and promote the welfare of children
  • give advice to the family courts in the form of:

    
    

    • a Wishes and Feelings Report
    • a Welfare Report
  • represent children in proceedings as their ‘Guardian’
  • provide information, advice and support to children and their families.