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Separating couples: when do we need a court order?

Consent orders in relation to children and consent orders in relation to financial settlements

Consent orders in relation to children

Issued proceedings

Where Children Act proceedings are underway, it is highly common for child arrangements to be resolved by consent (sometimes at the court room door prior to a final contested hearing), in which case the proposed agreement would be submitted to the court for approval and would, once sealed, have the force of a binding court order.

No court proceedings

It is far less common for parties to submit an agreement to the court for conversion into a binding court order when parents agree arrangements between themselves without having had to issue proceedings.

Although the current application form dealing with applications for Child Arrangement Orders, Specific Issue Orders and Prohibited Steps Orders (the C100) does make provision for a party lodging a consent order, the process is in our experience rarely used.

The reasons are two-fold:

The “no order” principle

  • The “no order” principle is enshrined in the Children Act 1989. This provides that an order concerning arrangements for the child should only be made if the court considers that doing so would be better for the child than making no order at all. Where the parties are therefore in agreement, the courts can and do refuse to make orders, considering them to be unnecessary.
  • Whilst the motivation behind this principle is understood, in numerous cases it does not reflect the reality that the agreement reached may have been very hard fought, and precariously balanced.

Requirement for safeguarding enquiries

  • Pursuant to the Children Act 1989, the child’s welfare is the paramount consideration for the court when addressing questions concerning a child’s living arrangements. In conjunction with that, the Child Arrangements Programme (Family Procedure Rules Practice Direction 12B) requires Cafcass to carry out safeguarding enquiries. In particular, at 13.3 “In order to inform the court of possible risks of harm to the child Cafcass will carry out safeguarding enquiries. For all child arrangements orders this will include seeking information form the Local Authority and carrying out police checks on the parties.” These enquiries will also involve telephone “risk identification interviews” with the parties, and the outcome must be presented to the court in the “safeguarding letter” no more than three days before the first hearing.
  • It is clear therefore that the court cannot simply approve the terms of an agreement reached between the parties, even if it appears entirely sensibly, without first satisfying itself that the proposed arrangements do not represent a safeguarding risk to the child’s welfare.
  • Parties who have reached an agreement may therefore wonder why they are now subject to Cafcass enquiries, in addition to potentially having to attend court for a hearing.

Pros

The likely outcome of the above two concerns is that parties who have reached an agreement may avoid submitting the agreement to court to obtain a consent order, having no wish for seemingly intrusive Cafcass involvement, and with the possibility of at least one hearing.

Cons

The obvious downside of failing to take that step is that if one party seeks to renege from an agreement which may have been very carefully negotiated and considered over a long period, the other has no rights of enforcement. This can result in the very quick unravelling of detailed arrangements for the child, which may well have been maintained if set out within the framework of a court order.

In a later article, we will address options for enforcement of an agreement concerning arrangements for the child, both where a consent order is in place, and where it is not.

Consent orders in relation to financial settlements       

The approach taken in relation to financial settlements is very different. Consent orders are commonly used where two parties, upon divorce, have reached an agreement as to how to divide the matrimonial finances. This could be during court proceedings, following mediation or even in discussions between themselves.

Consent orders are always recommended by solicitors, as finality is important, if not vital. Orders must be carefully drafted, to ensure that in the one document all assets and liabilities (realised or contingent) are properly dealt with, and to ensure that any potential future claims are properly dismissed. Otherwise claims may remain ‘open’, potentially resulting in claims for financial support many years later (see the Supreme Court case of Wyatt v Vince).

Where no financial disclosure has previously been filed (as would be required if financial proceedings were underway), the court requires the parties to complete a statement of information form (“SOI”) to be lodged along with the draft consent order. The SOI sets out a brief snapshot of the parties’ respective financial positions prior to implementation of the proposed order, as well as enabling them to explain any relevant circumstances pertaining to the order sought. This must be completed by both parties, and each must sign to confirm that they have seen an SOI properly completed by the other. The duty of full and frank disclosure pervades.

The draft order may be submitted on paper, and may be reviewed by the district judge in their “box work”, that is to say without the attendance of the parties at a formal hearing. However, it is clear that the district judge must (by statutory duty) consider the draft order in the context of the usual criteria, being listed in s25 of the Matrimonial Causes Act 1973. The court is bound to consider whether the terms agreed would represent a “fair outcome” for the parties, taking into account all the circumstances of the case.

If the court approves the order, it will be “sealed” and copies dispatched to both parties, who must then address implementation of its terms.

If the court has concerns about the terms of the order, or for example, where one party is represented and the other is not, the court may list a hearing of its own motion to address the proposed terms with the parties.

Generally, case law dictates that where the order has been drafted by lawyers, the court is likely to approve it and be “heavily influenced by what the parties themselves have agreed." (Sharland v Sharland [2015] UKSC 60, Baroness Hale at paragraph 20). Although the court does not act as a simple rubber stamp, adults with full capacity, and access to proper legal advice, will generally be expected to know what is in their best interests.

If the content of this update raises any issues for you, or you would like to discuss, please liaise with Ellie Webster at eleanor.webster@weightmans.com.

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