Think about the children first!
It is the time of year where lawyers make most of their money. The January onslaught of divorce case applications. Christmas is an evocative time of year. It can be a time of joy, but for many people, it is a time of abject misery.
And with New Year resolutions, many marriages are brought to a close. Most of those marriages have been unhappy for a great deal of time and the New Year seems good time to face up to life beyond.
One of the things I specialise in, is supporting separated parents in making child arrangements for the future of the children once a marriage has come to an end.
Overwhelmingly, what I find, is that the two parents are so busy trading a war of words with one another, that they forget to give the children the necessary consideration which is due to them.
For me, I think it is more important to first work out what is in the best interests of the children, than to rush to the solicitors office and file for a divorce petition.
However, in reality, this rarely happens.
When adults are preoccupied with their own misery and the demise of their relationships, they fail to realise the impact that is having on the children.
Children are not oblivious. They can hear arguments, and sense the tension.
The most important things that a child needs, are stability and to know what they are doing and with whom they are doing it with.
Children are able to cope with separation better than adults realise, so long as they have structure and routine.
Sometimes, when parents separate, things are amicable. And it follows that a sensible plan can be worked out for how best, the children from the relationship can be shared.
When parents cannot agree, however, it becomes necessary to think about asking the court to make rulings and decisions about where the children should live and with whom they should spend time.
In the UK, the family court prefers that the parents make a parent sharing plan. This is in the hope that the court system does not become overwhelmed and also in the realisation that the court process can be very emotional and distressing on all parties, especially the children.
When a parent sharing plan cannot be achieved, the next step in the process, unless there are allegations of domestic violence, is for the parents to apply for a mediation process. This is called a MIAM which stands for mediation information and assessment meeting.
The purpose of mediation is to see whether or not a parent sharing plan can be worked out using the support of a specially trained advisor who can help to take some of the heat and the emotion out of the situation.
A MIAM, like a parent sharing plan, is not legally binding, and can fail at any time without legal consequence.
If domestic violence is involved, then mediation is not necessary.
However, domestic violence must be proven in some form or other. This can be because the police were called and a report made, or it can be going to see the doctor so that the violence can be evidenced and put onto medical records.
Sadly, many people tried to claim domestic violence incorrectly and it has become a significant reason within the family court for making child arrangement applications without going through the correct steps.
Where children are involved in the demise of a marriage or relationship, the first step should be to consider the children and come to some arrangement for where they live and what time they spend with the non-resident parent. It is easier to divorce once the children related matters have been correctly put in place. It is also kinder to the children who also have to cope with their parents separating and splitting up.
It is important to note that you do not need to have a solicitor or lawyer when it comes to making a child arrangements order application. I would go further to say that solicitors and lawyers are incredibly expensive and often child arrangements is not their core work and so therefore things become protracted and delayed unnecessarily, all at the payers expense.
It is advisable, however to have some knowledge of the process. I work with a charitable organisation called families need Fathers which assists separated dads in sorting out contact with their children. If you are a father who has separated from your former spouse, I strongly advise you to join families need Fathers. Through the charity, you have access to group meetings and a wealth of advice and knowledge so that you can apply for a child arrangements order as, what is known as, a litigant in person.
A McKenzie friend is a person who has a specialism in legal matters and can support litigants in person in going through the court process.
One principle benefit of using a McKenzie friend, is that the cost is significantly less than going through a traditional solicitor or lawyer route. And for many who have limited finances, it should be the preferred option when looking to make child arrangements orders.
It is important to tell you that going to the family court for a child arrangements order is a process, not just one hearing. This process, especially in the current pandemic climate, can take many months or even a year or more. Knowing this going in is important. And it should focus the mind as to whether or not you can make a parent sharing plan with your ex spouse without the need of resorting to the family Court.
It remains that sometimes all amicable solutions are not achievable. And for that reason I, as well as my friends at families need Fathers and other organisations are here to support parents going through child arrangements after separation.
The first thing to determine in an application is whether or not it is urgent. Urgent applications are usually around matters to do with domestic violence or whether or not there has been any kind of abuse towards the children.
If there has been serious domestic violence and/or abuse of the children and urgent hearing is recommended. Generally these will be heard within days if not weeks of the application being submitted.
Abuse is not just physical or sexual. It is psychological, emotional and financial harm as well.
Otherwise the application will be listed for a first hearing dispute resolution appointment (FHDRA). This will occur anything from 1 to 3 months after the application has been submitted. Although it is important to note that the court distribution of business rules state that the first hearing should be held within 5 to 6 weeks of the application being submitted (See No.12).
The court will, in all circumstances, appoint a social worker, called a family court advisor, and their role is to represent the children’s interests and advise the court as a liaison between the children and the court. The organisation that operates this is called Cafcass.
Cafcass will be instructed, as a matter of course, to prepare a safeguarding letter at the beginning of the child arrangements process. This will enable the court to understand whether or not there is any previous criminal history, or whether or not there has been police intervention or whether or not the family have formerly (or currently) been known to social services.
The safeguarding letter will also serve the purpose of giving the court an initial view on with whom the children should live and with whom the children should spend time with. Both parents will be involved in this process and will be spoken to directly by Cafcass.
At the first hearing, the court will use the safeguarding letter to provide interim directions for spending time with and contact with the children. If domestic violence has been indicated in the application by one or other of the parties, then the court will at the earliest instance identify this and make a decision as to whether or not this needs to be investigated.
The process of investigating domestic violence is contained within a piece of legislation known as the Family Procedure Rules and is called practice direction 12 J.
If the court or Cafcass decide that a practice direction 12 J hearing is necessary, the court will convene at a separate time in order to undertake a fact-finding hearing.
This will involve both parties.
And beforehand, both parties will be expected to have completed a Scott schedule which sets out the basis (allegations) of domestic violence instances against one another.
At the fact-finding hearing, the court will test all the items on the Scott schedule and decide whose evidence they prefer and whether or not a finding can be made in each of the points raised.
Once that has happened, Cafcass will then be instructed to complete a section 7 report (Section 7 of The Children Act 1989) which will focus more in depth on what the parents have said, what the fact-finding identified, and by speaking directly with the children themselves.
Only once the section 7 report has been prepared and delivered to the court will a new hearing be convened as a dispute resolution appointment, and this will be where the court will be looking to make more interim directions with a view to a final hearing.
The timelag between all these hearings will be a number of months. And where a practice direction 12 J process is inserted into the child arrangements order proceedings, this will typically add at least 4 to 6 months.
So rather than waste everybody’s time, and bearing in mind that this is about the children and the best interests of the children, not the best interests of the parent or the non-resident parent, if domestic violence has not occurred, and it is just being used as an excuse to try and leverage the court into giving one or other of the adults residence of the children, please think again.
Think about how the children will be affected where, for 18 months or more of their life, their fate is still undecided.
You do not need to have previous court experience in order to be a litigant in person. But having a professional such as a McKenzie friend will be of great benefit to you. Mackenzie friends can take notes for you, help you fill out forms, prepare court statements for you, and, with the agreement of the judge, have the right of audience and speak on your behalf at hearings.
The cost of making a child arrangements order application are currently £215. If you are unemployed and claiming benefits such as universal credit, you may be eligible for fee remission. This will mean that you have no cost to pay to the court. You will of course have the cost of a solicitor if you use one, or a McKenzie friend if you so choose one.
A mediation information and assessment meeting generally costs around £120. The McKenzie friend cannot help you with this. Instead you will need to go to the family mediation council and find your nearest mediator.
For the benefit and well-being of the children, I highly recommend that you sort out your child arrangements order or parent sharing plan BEFORE filing for divorce.
It is worth noting that if you wish to claim child maintenance from the non-resident parent, this is not handled under a child arrangements order. It is also not handled under a divorce petition. You can make direct arrangements with your ex partner, or you have the right to go to the Child Maintenance Service for a fixed determination.
If you are thinking of divorce in order to sort out maintenance, better to go down the route of child maintenance service. It will be quicker. And does not impact on any financial settlement in the final outcome of the divorce.
My Code of Practice under Resolution