Who do children live with after a divorce? - Boodle Hatfield

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23 Jun 2017

Who do children live with after a divorce?

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As of 22 April, 2014 extensive family law reforms have been instituted by the Children and Families Act 2014.

The government’s aim is to restore confidence in the family court system and to reduce court applications by encouraging alternate methods of dispute resolution.

The Child Arrangements Programme 2014 (the programme) concerns the arrangements for children where a dispute arises following relationship breakdown. Previously, if parents wanted the court to decide with whom the child should live and when the child would see the other parent, they would apply to the court for a contact and/or a residence order. Now these orders are no more and the label of ‘residence’ has disappeared.

What are the new rules?

In their place, we have the child arrangement order (CAO). This is an order which will regulate with whom a child is to live, spend time or have contact. The aspiration is that the change in terminology and in particular the dropping of the ‘residence’ label will encourage a less confrontational relationship between parents.

From autumn 2014 a new presumption will be introduced that both parents should be involved in their child’s life furthering their welfare ‘unless the contrary is shown’ or there is evidence to show that the child is at a risk of suffering harm. It is specifically stated that this does not create a right to any particular amount of time with a child.

The programme places great emphasis on out-of-court dispute resolution. Parents are being encouraged to come to an agreement, rather than letting the court decide for them. Mediation is promoted and a mediation information meeting (MIAM) is compulsory before either parent can apply to the court unless an exception applies (such as domestic violence).

Parents are encouraged to work together to devise a parenting plan to use in mediation and in any proceedings and there is a section in the programme dedicated to signposting a range of various services to help families.

Where disputes cannot be settled out of court, the process aims to deal with the issues swiftly and effectively. There are two hearings within the structure of the programme giving the parties the chance to resolve the dispute without a contested hearing, the first of which will take place five to six weeks after an application to court is made.

What is the best advice for separating parents?

Parents are being encouraged to recognise the need to develop a cooperative parenting relationship going forward. For many, the first and most helpful step will be to start a Parenting Plan. These aim to help parents work out the best possible arrangements for their children and to try and ensure that these plans are clear, consistent and reliable. It is likely that the court will expect parents to have started a parenting plan if an application is made.

For help with this, please see here.

What is the position for international families?

For families living overseas and one parent relocates to England and Wales with the children leaving the other parent abroad, the children will come under the jurisdiction of the English courts if they live here. The programme applies for these international families in the same way save that prior attendance at a MIAM is not needed if the parent applying to court lives overseas.

If one parent living in England and Wales wishes to relocate abroad and the other refuses consent, the parent wishing to leave must apply for permission from the court. A person named in a CAO as a person with whom the child is to live does not require permission to relocate within the UK but if the other parent wishes to prevent the move he may apply to the court. In both cases, the programme will apply and attendance at a MIAM before making an application will be compulsory.

This article originally appeared in Spear’s Magazine. 

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