Child Contact and Residence/Custody in Divorce Proceedings

WELFARE CHECK LIST IN CHILDREN ACT PROCEEDINGS

The Court 'shall have regard in particular to:

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

(b) his physical, emotional and education needs;

(c) the likely effect on him of any change in his circumstances'

(d) his age, sex, background and any characteristics of his which the Court consider relevant;

(e) any harm which he has suffered or is at risk of suffering;

(f) 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;

(g) The range of powers available to the Court under this Act in the proceedings in question'

The outcome will depend on your particular circumstances and the maturity of the child or children involved.

So older children's wishes will be given greater weight than, say, a five-year-old, but if there is violence or some other behaviour issue in the home, the Court might think it is appropriate to over-ride a child's wishes.

In every case relating to children the Court must consider the paramount welfare of the children.

Decide what is best for your children, and what is most likely to keep them happy.

Most children love both parents and are devastated when one of them leaves the family home and even feel that they are in some way to blame. It is crucial to reassure them that they are not to blame for the break-up and that, whatever the parents' feelings are for each other, both parents still love their children. Try to keep your disagreements away from the children.

It is best to inform their school what is happening, as children usually exhibit some kind of emotional behaviour at school, ranging from inattention to sadness, withdrawal, or disruptive behaviour, and if their teachers know what is going on, they will make allowances for this and give them special consideration. They will also need to know where to send school reports and letters,whether they should send them to each parent, and who is permitted to take the children from school.

You will need to decide which parent they will live with, and how much time they will spend with the other parent, including time spent overnight. You do not necessarily need to get a court order for this, but when the divorce petition is lodged at court, a form called Statement Arrangements for Children must accompany it, and the court will want to know whether the arrangements stated in that form are agreed or disputed and whether they are reasonable in the circumstances.

You will need to make an Application to the Court under the Children Act for a preliminary hearing. After considering what each parent has to say, the Court will then consider what the next steps should be and make an appropriate temporary order (called an Interim Order).

They will probably suggest that you both attend mediation to see whether that will help to resolve the disagreement.

They will make an order about where the children should live and how often they will see the non-resident parent, until such time as there is a further hearing.

They might ask for a report from a Children and Family Court Advisory and Support Service (CAFCASS) officer, but as such a report can take about 18 weeks, as there is a shortage of officers, they often don't request a report at this stage, but wait to see how mediation goes.

A Court Order may cover a range of things, from residence and contact to holidays, religion and schooling.There may be an order prohibiting things such as coming into contact with a specific person or taking a child out of the country. The parents will be encouraged to agree to the terms of the Court Order, and if they do, it will be called a Consent Order.

This order will be expected to last until a Final Order is made by the Court. Sometimes there won't be a further or final order, if the consent order is working, or the parents agree to resolve things between themselves without going back to court again.

Sometimes there needs to be a further Interim hearing and order, and sometimes there needs to be a full hearing, where all the evidence is considered in greater detail.