Disputes involving children can be difficult and stressful, both for parents and for the children involved. Our child law solicitors have extensive experience in resolving these issues sensitively and constructively.
Disputes about with which parent children should live and how they spend time with their other parent are not limited to the time of a relationship breakdown. Difficulties can occur at any point until your children become adults.
Our family law team are experts when it comes to handling legal cases regarding children, including their living arrangements in the event of a divorce or separation.
Central to all these disputes are the children themselves.
Co-operation between parents and a willingness to put the children's needs first will minimise the impact of separation on them. We can help you consider non court based options for finding solutions, such as mediation or collaborative law, or court based litigation.
Constructive advice at an early stage can be invaluable, particularly if matters are complex and involve allegations of abuse or violence.
Our experience in representing Local Authorities in cases with social services involvement provides additional insight and strategic advice to help you navigate difficult or complex situations where allegations of harm or abuse are raised.
In every case, we help you to reach a solution that's in the best interests of your children.
Relationship breakdown podcasts
A guide to the legal process for resolving disputes involving children following relationship breakdown.
We advise on applications for child maintenance and assist in negotiations to reach child maintenance agreements on divorce/dissolution or separation.
However you choose to start your family, it is important to understand the legal implications.
When couples or single people join together to start a family – 'co-parenting' – whether it be by way of surrogacy, assisted reproduction or adoption, we can advise on the legal status of co-parents and who will have (or may acquire) parental responsibility for any child, as well as the legal applications that may need to be made.
Separate from child welfare issues are financial claims relating to children. You may need advice on applications for child maintenance and assistance in negotiations to reach child maintenance agreements on divorce/dissolution or separation.
Applying English law, we also advise on making applications under Schedule 1 Children Act 1989, which may include property settlement, lump sum claims and school fees orders. Schedule 1 claims on behalf of children can be critical for unmarried parents or former cohabitants for whom divorce settlement remedies are not available. As well as representing parents, we act for children themselves in seeking financial assistance, for example, maintenance for their university education.
In Scotland, child maintenance is known as “aliment” and is governed by different rules and legislation. We can advise on making an application to the court under the Family Law (Scotland) Act 1985 for aliment and Interim aliment as well as orders in respect of school fees. We can also advise cohabitants on seeking Capital sum payments in respect of children under the Family Law (Scotland) Act 2006.
A grandparent has no automatic legal 'right' to see their grandchildren. However, if you have been unable to agree on arrangements to see your grandchildren with either of their parents, it is possible to apply to the court for help.
We have experience in successfully representing grandparents applying to court, whether for a child arrangements order (called a parental rights order in Scotland) or special guardianship. We can help grandparents, and other members of the extended family, explore their options.
If parents cannot agree on arrangements to take their children on holiday, it is important to check out the legal implications of going away, or blocking a holiday, particularly abroad or out of the jurisdiction. We can help you explore the options and consider court applications, whether for a specific issue order or prohibited steps order. Sometimes urgent applications are required and we can deal with that with you. Even if a holiday is by agreement, a letter of consent, or other formal legal documentation, might be required by the relevant immigration authorities.
Moving abroad or relocating with your children
If you're thinking of making a move to live abroad with a child (sometimes called 'leave to remove' cases) or are concerned that your ex-partner is considering to do so, early advice is recommended. Likewise, if you are planning to move a distance away from your child's other parent within England and Wales, or elsewhere in the UK. Such cases can be complex, and require careful planning. We have extensive experience of both succeeding in, and defending, these cases.
We advise on issues of parental responsibility (in Scotland, parental rights and responsibility) including drafting parental responsibility agreements and difficulties when they arise in exercising that responsibility. These can include issues over schooling, religious upbringing and your child's health.
We can help you work out whether you or your partner has parental responsibility, the likelihood of obtaining it through a variety of means and the effect it will have on your family.
The position for step parents is different from that of parents, grandparents or adoptive parents. Different rules apply to the manner in which they can acquire parental responsibility and other orders affecting the child such as child arrangement orders. The options available will depend on the specific circumstances and early advice is recommended.
Similarly, the financial obligations of a step parent towards a child differ from those of its parents and will depend on a number of factors including whether the child was treated as a child of the family during the marriage. We can advise on this and other issues affecting step parents and the children of step parents.
We can help you to fully understand the complicated legal position involved in taking the step of surrogacy, especially if there is a foreign surrogacy arrangement.
We offer a free 30 minute consultation on matters concerning children.
Under English law, parental responsibility is defined as "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property".
In practical terms, it gives the parent responsibility for taking all the important decisions in a child's life such as education, religion and medical care as well as day to day decisions, for example in relation to nutrition, recreation and outings.
Married parents have joint parental responsibility. However, if you are not married, only the mother automatically has parental responsibility. An unmarried father can, however, obtain parental responsibility in a number of ways, the most common of which is being named on the child's birth certificate (for children born after 1 December 2003).
In Scotland, the legislation in respect of parental rights and responsibilities is different from England. Rights and responsibilities are regulated by the Children (Scotland) Act 1995 and the amendments which were made to that by the Family Law (Scotland) Act 2006 which gave unmarried fathers the same parental rights and responsibilities as the mother.
"Parental responsibilities" are defined in section 1 of the 1995 Act as follows:
to safeguard and promote a child's health, development and welfare;
to provide in a manner appropriate to the stage of development of the child direction and guidance to the child;
if the child is not living with the parent, to maintain personal relations and direct contact with a child on a regular basis; and
to act as a child's legal representative.
"Parental rights" are set out in section 2 of the Act and are as follows:
to have a child living with him or her or otherwise regulate the child's residence;
to control, direct or guide in a manner appropriate to the stage of development of the child, the child's upbringing;
if the child is not living with him or her, to maintain personal relations and direct contact with the child on a regular basis; and
to act as the child's legal representative.
Married parents have joint parental rights and responsibilities. However, if you are not married, only the mother automatically has parental rights and responsibilities unless the father is named on the child's birth certificate.
Often it is possible to reach agreement in respect of your children such as where they will live, what time should be spent with each parent and the level of child maintenance which should be paid.
Court orders are not generally necessary to reflect agreements that have been reached, but can be useful for certainty and can be obtained by consent.
A mutual agreement has the best prospects of success and will cause the least disruption to the children. The mediation process can help to reach that agreement. Keeping the lines of communication open with the other parent and involving them in any decision-making process can often lead to an agreement that suits all concerned.
If agreement cannot be reached for whatever reason, we will advise you on the potential for a referral to mediation and your options in respect of a court application so that you can make a fully informed decision as to whether this process is in your child's best interests.
You will need to complete an application form setting out what order you wish to apply for and brief details of the issues. You will have to pay a court fee. Once the application is issued by the court, it will have to be served on the other parent/party so that they know about the court hearing and the application that you have made.
If your case is urgent, we will advise you to make an emergency application to the court. Urgent applications can be made, and the court will determine the degree of urgency and how quickly to list a first hearing.
Cafcass will undertake safeguarding checks with the relevant agencies before the first court hearing which is called a First Hearing Dispute Resolution Appointment (FHDRA). You will need to attend that hearing personally with your legal representative.
At this hearing, the judge and a Cafcass officer will consider your case and try to assist you in reaching a compromise. If this is not successful, the judge will consider what further information is required in order to reach a solution and may order you to prepare a statement setting out your case or that the Cafcass officer visits you and your children in order to prepare a report on what might be the best outcome for the child.
The court may also require additional expert evidence such as a psychologist's report or a drug or alcohol test depending on the individual circumstances of the case.
Once all the information has been obtained, we will guide you as to what happens next and what view the judge is likely to take. A dispute resolution hearing will be listed by the court to consider the case.
If agreement is still not possible, another court hearing will be listed. The judge will make a decision at the final hearing, usually after hearing evidence from all concerned.
You will need to raise an action by way of initial writ seeking such orders you deem necessary in the best interest of your child. A court fee will have to be paid to the court.
The court will warrant the writ for service on the other parent/party so that they know about the court hearing and they will have 21 days to respond.
If you need to seek an urgent order the court can fix an earlier hearing. Otherwise, when the other parent/party has notified the court that the intent to defend the action, the court will fix a child welfare hearing.
Both parties attend the hearing and the court will try to expeditiously resolve matters if they can. The court may appoint an expert report to be prepared into the background of the case to assist the judge in deciding matters. The court may make interim arrangements and continue the hearing to monitor those arrangements. Sometimes the case may be continued several times.
There is no CAFCASS service in Scotland to assist in monitoring and facilitating the arrangements for care. If there are further difficulties or the parties cannot agree on arrangements, the court may fix an evidential hearing before making a final decision.
This is only a requirement in England and Wales, not Scotland.
Before a court application can be made, save in urgent situations, you must attend a Mediation Information and Assessment Meeting, a 'MIAM'. This is to explore first whether mediation can assist in your circumstances, and if appropriate, the parent(s) of the children may be prepared to attend mediation to try to reach an amicable agreement.
The most common orders are Child Arrangements Orders. These are often a 'lives with' order (sometimes called 'custody' or 'residence'), 'time spent with' order (sometimes called 'access' or 'contact'), a prohibited steps order or a specific issue order. All of these orders will usually last until your child is aged 16.
Other orders may relate to child relocation, whether within the jurisdiction or moving abroad, parental responsibility, special guardianship, child abduction and/or financial provision for children.
In Scotland, the court can make an order granting or restricting parental rights and responsibilities; for contact; residence; and specific issue orders, for example, which school the child should attend.
The court can also make interim orders and protective orders. For example, to interdict the removal of a child from one parent's care or out of the jurisdiction.
In deciding whether to make an order, the child's welfare will always be the court’s paramount concern and in each case, the court will undertake a detailed review of what is in the child's best interests. The court will apply a checklist of factors to be taken into account and it is therefore of vital importance that your case is presented in a way which addresses each of these points.
The court will consider the wishes and feelings of the child, their physical, emotional and educational needs, the likely effect on the child of any change in circumstances, the child's age, sex, background and any other relevant characteristics, any harm that the child has suffered or is at risk of suffering and how capable the adults involved are of meeting the child's needs.
A child arrangements order specifies with whom a child should live (a 'lives with' order) and the time they will spend with the non-resident parent (a 'spends time with' order). Child arrangements orders have replaced custody, access, residence and contact orders.
A child arrangements order can specify that a child lives with one or both parents (formerly known as shared residence or joint custody) or with a third party, such as a grandparent, depending on the child's circumstances.
If the court considers that your child should live with both parents, the order can specify the periods during which your child is to live in the different households involved and it is not therefore necessarily the case that your child will divide their time equally between their parents.
A child arrangements order will usually include a requirement for the person with whom the child lives to make the child available to visit or stay with the other parent or person named in the order. A child arrangements order can, therefore, be made in favour of a non-resident absent parent or a third party such as a grandparent or other relative. For certain people, it may be necessary to first obtain the permission of the court to make an application.
In addition to specifying the time a child will spend with its non-resident parent, a child arrangements order can also cover indirect contact by letter, electronic media such as Skype, Facetime, WhatsApp or by telephone.
The frequency of contact can also be recorded in the order and can be specific in terms of, for example, weekends or holidays. It can also be more general, allowing parents flexibility to make their own arrangements within a general framework. The court may determine where the time spent with the child takes place and whether it is to be supervised.
Any party with whom a child arrangements order specifies that the child lives (which can be both parties) can remove the child from England and Wales for a period of up to 28 days without the written consent of the other. Any other removal from the jurisdiction will be unlawful without the written consent of the other parent or a court order.
A contact order specifies who a child should have contact with.
A residence order specifies who the child should reside with.
Neither order specifically removes a parent’s parental rights and responsibilities but in practice, the parent with residence will be able to determine the child's normal day to day arrangements as long as it does not conflict with any contact order or specific issue order. A shared residence arrangement is possible but will need to specify when exactly the child should be with one parent and the other to avoid disagreement.
Any of these orders can be made in favour of either parent or a third party such as a grandparent or other relative if it is in the best interests of the child.
A contact order can specify the time that the child will spend with its non-resident parent but also can cover indirect contact by letter, electronic media such as Skype, FaceTime, WhatsApp or by telephone.
In certain situations, if the child may be at risk, the contact order can also specify that the contact should be supervised.
The order may also allow for holidays abroad. Otherwise, neither party is allowed to take the child out with the UK without the other's consent.
This type of order can be used to prevent one parent from taking certain action without the other parent's consent and as such deals with a specific problem that has arisen. A common use of this order is to prevent one parent from taking a child abroad, taking a child out of school or to prevent a change of surname.
This type of order allows the court to make a decision on a disputed point such as what school a child should attend, whether a child should be known by a particular name, have a particular operation or what religion a child should adopt.
When a child arrangements order is in force, no party can change a child's surname without the written consent of everyone who has parental responsibility.
If you wish to move to live outside of the jurisdiction of England and Wales or move a significant distance within the jurisdiction with your child (so as to create difficulty for your ex-partner to maintain their current contact pattern) and your child's other parent objects, you will need to make an application to the court for permission to move. The court's decision will be determined by your child's best interests.
There are specific considerations that the court will take into account in such cases and the court will expect detailed proposals which are reasonable and have a genuine motivation. The court will also consider the effect on both parents of the decision to allow or refuse the move, the effect on the child and the potential reduction in the time they would be able to spend with the parent who was left behind and what proposals have been made or how feasible it is for this contact to be maintained.
Whether you are the parent wishing to move or the one potentially being left behind, these will have a profound effect on both you and your child and need to be dealt with sensitively yet robustly in order to achieve the best possible outcome.
Within the United Kingdom, there are specific legislative rules providing which court should be able to act in respect of the case. We will be able to advise you as to which court and jurisdiction would have authority to deal with your case in either jurisdiction.
Separated parents are often unaware that they may be required to obtain permission from the other parent in order to take a child out of the country (i.e. anywhere other than the United Kingdom). The legal requirements for obtaining permission will vary in accordance with what child arrangements order has been made, if any.
The legal starting point is to consider who has parental responsibility. If both parents have parental responsibility and there is no child arrangements order – 'lives with' (previously known as a residence order) in place, then neither parent can take a child outside of the UK without the written consent of the other parent (and any other party with parental responsibility) or an order of the court. This rule applies whether or not parents are separated.
In England and Wales, if there is a child arrangements order in place which specifies who the child is to live with (the resident parent), then the resident parent does not require the written consent of the non-resident parent to take the child outside the UK for a period of up to 28 days, providing that this does not interrupt any contact arrangements that the child may have with the non-resident parent. This specific rule does not apply in Scotland.
If a parent is unable to agree on matters with the other parent (or parties with parental responsibility), it may be necessary to apply to the court for a specific issue order, requesting the court to grant permission to travel outside of the jurisdiction with a child. Alternatively, if a parent who has refused consent fears that the other parent will still take steps to remove the child from the UK, an application to the court for a prohibited steps order to prevent the child from being taken out of the UK by the other parent may be required.
When making any decision about a child, the court's primary consideration is the welfare of that child and their best interests.
When a child arrangements order is in force, no party can change a child's surname without the written consent of everyone who has parental responsibility. If there is no child arrangements order in place, a parent can object to the change and applications brought to determine the issue by way of a prohibited steps order or specific issue order.
Parents considering a change of surname, or objecting to a proposed change, should seek expert advice and guidance as this is a complex aspect of the law.
Financial support for your children is governed by the Child Support Agency for their maintenance claims.
If you are married, your children's property and financial needs are usually dealt with in a financial remedy application on divorce, by consent or by court application if necessary.
If you are unmarried, your children's needs including property, lump sums and school fees, can be addressed in a Schedule 1 Children Act application in England and Wales. In Scotland, this can be addressed in an aliment action or action under the cohabitant legislation.
When a couple separates, the absent parent will be required to pay child support in accordance with Child Support Agency (CSA) guidelines. You may wish to consider whether you are able to reach agreement in respect of this or whether an application to the CSA is necessary. We will advise you on your options and what you might expect to pay or receive for your child depending on your circumstances.
In England and Wales, if your income exceeds a limit specified by the CSA, it is possible for a further claim to be made against you for 'top up maintenance' under Schedule 1 Children Act 1989. In addition, claims can be made under Schedule 1 for property and lump sums, to secure a home for your child and the parent with care to live in.
In Scotland, an application can be made for a 'top up' under the Family Law (Scotland ) Act 1985. If parties have been cohabiting and have separated, an order for a lump sum could also be sought under the Family Law (Scotland) Act 2006.
A grandparent has no automatic legal 'right' to see their grandchildren.
If you cannot reach an agreement with the parents of your grandchildren, you may be able to ask the court to assist in making arrangements. Usually, and in England and Wales, you will need the permission ('leave') of the court first to make an application and if successful, the court would then consider the main application.
In Scotland, you can apply for parental rights, or a contact or residence order directly in the same way a parent might.
In England and Wales, if mediation is unsuccessful, and/or the parents are not prepared to engage, as a grandparent you first have to obtain the 'leave', or permission of the court, before progressing your application for a child arrangements order to spend time with your grandchildren.
The court will normally address the issue of 'leave' at the first hearing, whether dealt with by consent or by order of the court. Whether or not that leave is granted will depend on a number of factors, including the nature of the application, the grandparent's connection to the child, and the risk to the child that granting the substantive application would disrupt his or her life to the extent that he/she would be harmed by it.
Assuming that the court has given permission ('leave') for such an application to be made, the judge will then apply the Children Act 1989 'welfare checklist' to make their decision, taking into account, for example, the age of the child, their wishes and feelings and any harm the child may be at risk of suffering. The paramount consideration will always be the child's welfare.
The court will likely require all the concerned parties to file statements and may instruct Cafcass to speak to the parties and to the children involved (depending on their age and maturity) so that they can report to the court on whether it is in the children's best interests to spend time with the grandparent, and on the frequency and nature that contact may take.
Often, agreement can be reached between the parties either at court or through negotiations, but if not, the court will hear evidence and impose a final order.
In Scotland, when making any decision, the court will consider the welfare of the child as paramount. They will consider if the order sought by the grandparent is in the best interests of the child. The court will consider all of the circumstances of the case. The court will consider the wishes of the child and how any proposed order will affect the existing arrangements for care and the relationship the child already has with their parents. The Court will only make an order if it believes it is necessary and in the best interests of the child.
In England and Wales, there are certain circumstances where a grandparent does not need the court's permission ('leave') to apply for a child arrangements order. These include where the grandparent already has a 'lives with' or 'residence order' in respect of the child, or for example, the child has been living with the grandparent for more than three years.
A special guardianship order is an order appointing one or more individuals to be a child's 'special guardian'. It is intended for those children who cannot live with their birth parents and who would benefit from a legally secure placement.
It is a more secure order than a 'lives with' or 'residence' order because a parent cannot apply to discharge it unless they have the permission of the court to do so. It gives parental responsibility to the applicant which gives them responsibility for day to day decisions relating to a child's care and upbringing. The local authority will be involved in the process, preparing a report for the court's consideration.
Mediation may assist in resolving matters without recourse to the. For more information, visit our mediation page.
Other methods of non-court dispute resolution are also available, including collaborative family law and arbitration.
Collaborative law involves a series of roundtable meetings between clients and their lawyers to reach an agreement on approach and solution to deal with their children on separation. All parties sign a participation agreement, agreeing not to go to court and so encouraging everyone to invest their efforts on reaching a negotiated solution.
Arbitration is a privately funded court process in which the clients agree to appoint an independent lawyer/arbitrator who will hear their case and make a decision which is then enforceable in the Family Court. The process can be tailored to the needs of the clients and is usually much quicker than the usual court process.