Packing your Case
The number of cases involving the courts and child arrangements is on the rise. The National Audit office recently published statistics showing a 22% increase in cases involving children contact arrangements, and a 30% increase in cases where neither party had legal representation. We are approaching the summer school holidays for many families, and this can be a flash point between those couples who live apart and want to spend time during the holidays with their children.
Mediation is now firmly on the radar, and to be encouraged. As an alternative to court action, it can be a very effective way of resolving issues between parents in particular where children are concerned. Indeed the court process as it is now effectively insists that at least one party has been to see a mediator to find out about the options available for resolving a dispute without resorting to an application to court – including mediation, arbitration and negotiation.
But, what if the parties have exhausted or are exhausted by those options and have reached the end of any meaningful discussions – what next? If court seems like the only way to break an impasse what is involved and how do you present your case to the court in the best light possible?
The court is primarily concerned with the welfare of the child or children involved. The perspective is that of the child not the rights or perceived entitlements of each parent. But how do you persuade the court that your arrangements are more appropriate than any others?
The law is found in the Children Act 1989, and deals now with ‘Child Arrangement Orders’ – what used to be known as Residence and Contact, and even before then as Custody and Access orders.
Section 1 Children Act 1989 states that the child’s welfare is the court’s paramount consideration. The focus is therefore on the child and why a particular arrangement is better for the child, rather than the parent.
The court considers the circumstances of the case with reference to the ‘welfare checklist’, a list of factors that the court must have particular regard in making decisions concerning children. The factors are set out at Section 1(3) as follows:
(a) The ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding);
(b) The child’s physical, emotional and educational needs;
(c) The likely effect on the child of the change in circumstances;
(d) The child’s age, sex, background and any characteristics which the court considers relevant;
(e) Any harm which the child has suffered or is at risk of suffering;
(f) How capable end 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 owners open to the court under the Children Act 1989.
It is in light of these factors that any application concerning a child must be approached by all concerned. Each party should therefore prepare their case with these factors in mind. It follows that the parties should concentrate on producing evidence to support those aspects, if they want the court to take their arguments into consideration. Only then can the court be sure to be able to review the most relevant features of the case.
Where do I start?
There are 3 principle things to get right:
What Order do you want the court to make?
How is that in the best interests of the child?
What is at fault in the other party’s proposals?
Not all the welfare checklist factors can or will necessarily apply. But it is helpful to use it to focus on the ones that are going to be persuasive. Phrases such as ‘in the child’s best interest’ or ‘with the child’s welfare at heart’ are used frequently, but it is important to refer to the welfare checklist and frame your arguments according to the factors that the court will consider. Emotions can run high, but by focussing on the checklist, you can be sure that the court will listen to your arguments.
Here Comes the Summer
Hopefully you will be able to agree what arrangements will be for the forthcoming summer break, and have those arrangements settled well in advance. If not, now is the time to be thinking about it or else you run the risk that the court will not be able to deal with matters in time for the holidays. If you think you might need some help or guidance with contact arrangements please do not hesitate to get in touch with Paradigm Family Law sooner rather than later. Call us on 0845 6020422 or email [email protected]. James and Frank are here to help.