Taking a child on holiday with a different surname

Posted on 2nd August 202224th January 2023 by McAlister Family Law

Taking a child abroad with a different surname

Now that the summer holidays have begun, you may be planning for a family holiday abroad. For most families in the UK with children, planning for a holiday involves taking certain precautions to ensure that they do not encounter any issues whilst travelling. This is particularly important for those parents that will be travelling with a child that has a different surname to them. Here Weronika Husejko offers her top tips for traveling abroad with a child who has a different surname.

What is the current situation?

In recent years, it has become increasingly difficult to travel abroad as a family in these circumstances. Many countries are stricter when it comes to parents travelling with children that do not have the same surname as them. Whilst this is a welcome change which promotes the safety of children all over the world, if you are not aware of this, a trip abroad can quickly become more stressful than anticipated.

How can I prepare?

There are some documents that you can bring with you which will reduce the likelihood of you and your family being held up whilst travelling.

Your child’s birth or adoption certificate. This can verify that you are in fact the child’s parent.

Proof of your change of surname such as your marriage certificate, deed poll or decree absolute which can demonstrate the reason for the difference in surname.

Written consent from the other parent. Asking the child’s other parent to sign a written form of authority demonstrating their consent to you taking then abroad can be useful as in most circumstances it is illegal to take a child abroad without the consent of every person with parental responsibility of that child.

Existing Court Order. If your child is subject to an existing Court Order such as a Child Arrangements Order, this is another document which may verify the connection to your child.

And finally…

Make sure to do some research as the rules can vary. It is always a good idea to look into the guidelines of the specific country that you are travelling to. Most airlines should also be able to provide you with some basic advice for your trip.

If you have any questions about this issue, or any other family law matter, please contact our team who would be happy to assist.

Can a child apply for financial support in their own right?

Posted on 28th July 202224th January 2023 by McAlister Family Law

Can a child apply for financial support in their own right?

Do the family courts have jurisdiction to grant a financial order on the application of a child against their parents? The short answer is yes, but only in limited circumstances. Here Aaron Williams explains how in one particular case, a child was able to make such an application.

In the novel case of FS v RS and JS [2020] EWFC 63, ‘children’ were able to make such an application. The circumstances in that case concerned an adult ‘child’. The applicant (aged 41) was a university graduate and qualified solicitor, however, due to his mental health hadn’t worked since 2011. The applicant was at the time of his application in further education in London. The applicant’s parents historically provided him with financial assistance by letting him reside in their London property with all outgoings paid for; these circumstances changed however when the applicant’s relationship with his parents deteriorated, and their financial assistance was reduced.

The applicant applied to the court claiming that his parents had ‘nurtured his dependency’ on them financially, and that their removal of financial aid would leave him poor and destitute. His application to the court was threefold, namely under; a) Section 27 of the Matrimonial Causes Act, b) Schedule 1 of the Children Act 1989, and c) the Court’s power to protect vulnerable adults who have the mental capacity ‘to make their own decision (under its inherent jurisdiction).

The court ultimately determined that it did not have jurisdiction to make an order for financial support in the circumstances of this case; but in its determination considered the circumstances such an application could be brought by a child.

Section 27 of the Matrimonial Causes Act 1973

Section 27 of the Matrimonial Causes Act enables the court to make financial provisions where one spouse has been neglecting to maintain the other spouse or a ‘child’ of the family. In this circumstance a child of 16 or older may make an application to the court, but only where one of their parents has previously applied (against the other parent) for a periodical payments order in the child’s favour.

Schedule 1 of the Children Act 1989

Under Schedule 1 children who are over the age of 18 can make an application against their parent, provided: –

The child is, or will be going on to higher education, undergoing training for a trade, profession or vocation; or
There are special circumstances that justify the order.

The court found against the applicant on the issue of higher education, as the judge found that ‘conventional wisdom and practice would suggest that these provisions were never intended to be used and cannot be used to fund the education of a perpetual student’.

‘Special circumstances’ are not defined and are ultimately the discretion of the court but there are several cases which provide examples of what may consider ‘special’.

T v S [1994]: a physical or cognitive disability.
C v F [1998]: where a child was severely disabled and would be dependent on another person for their whole life.

In short, the courts generally consider that a parent’s financial obligation to their child ceases at 18 years of age, and that the child will usually no longer be dependant when they finish their education. It is only in one of the limited circumstances detailed above that an adult child can make an application against their parent for financial provision.

Do I still have to pay child maintenance when my child attends university?

Posted on 21st July 202224th January 2023 by McAlister Family Law

Do I still have to pay child maintenance when my child attends university?

Lots of parents don’t know what level of financial contribution they are required to make (if any) when their children start university, and it’s something that isn’t talked about often. What if one parent wants to continue financial support and the other doesn’t? Here, Frances Bentley explains the requirements for separated parents to pay maintenance throughout their child’s academic career.

Child maintenance (as dealt with by the Child Maintenance Service), is payable until a child is age 16 or up to age 20 if they are in full time secondary education (college education). So, if a child finishes their A-levels/college education at age 18, the paying parent only needs to pay child maintenance until they finish, because university education does not fall under the umbrella of secondary education. So, there is no requirement to continue paying child maintenance beyond that time and when a child goes to university.

Lots of parents will decide to provide their children with a level of voluntary financial support whilst at university, but if one parents states they simply are not going to, the other parent may query whether there is a legal route for them to force contributions to their child’s ongoing educational costs.

If you are in this situation what should you do?

This is something that should be thought about by parents early on because the court’s powers are more limited once the age of 18 is reached. Before considering any potential legal route, parents should keep lines of communication open, to discuss their concerns and the level of financial contribution that might be required.

There will need to be an exercise whereby you calculate what the child’s income vs expenditure will be. For example, are they going to receive grants, loans, or have any income from employment? What will their expenses be, so accommodation costs, bills, books, living expenses? The reason this is important is so that you can calculate what level of shortfall there is and what you need the other parent to pay. This is also what the court would do if a legal route was later pursued.

If there is no progress, then mediation could be a good option to talk through the issues with the other parent – a mediator is a trained professional who will allow you both to have your say and the aim would be to reach a financial agreement that way.

If an agreement cannot be reached, is there a legal remedy that a parent can pursue, once child maintenance has ceased and if the child needs ongoing financial support?

It is possible for a parent to make a court application under Schedule 1 of the Children Act 1989 for periodical payments (financial support) or for a lump sum for a child. However, the court only has powers to make orders until the child is 18, and if the children is over 18, they are required to make the application themselves.

For an application to be pursued, the child must be in “full time” education, or undergoing training, or there would need to be special circumstances (for example the child involved has a disability or vulnerability which means they cannot be financially independent).

When determining a schedule 1 application, the court would look at “all of the circumstances of the case” including:

the income, earning capacity, property and other financial resources which each person has or is likely to have in the future;
the financial needs, obligations and responsibilities which each person has or is likely to have in the foreseeable future;
The financial needs of the child;
The income, earning capacity (if any), property and other financial resources of the child;
Any physical or mental disability of the child;
The manner in which the child was being, or was expected to be educated or trained.

It is always important to seek early advice if you are wanting to know your options about making a court application. Our specialist team of family lawyers can advise you in respect of your options, prospects of success, whether an application should be made my you or your child directly (taking into account the court’s powers and the children’s age) and undertake a costs v benefits analysis of making any court application on your behalf.

We cannot agree on a school – What will the court decide?

Posted on 15th July 202224th January 2023 by McAlister Family Law

We cannot agree on a school – What will the court decide?

If you are separated parents and cannot agree on what school your children should attend there are considerations that both of you need to keep in mind. Here, Jemma Wentworth discusses what happens when a separated couple cannot decide on which school their child should attend, and how the Court’s decision may vary depending on the care arrangement.

If it is agreed between you that one parent is the primary carer, meaning that one parent deals with the day to day needs of the children, and the children’s home is with that particular parent, then common sense must prevail. The school most local to that parent, or the school being selected by that parent, should be first consideration.

If that educational setting is not agreed by the non-primary parent, justifiable reasons must be put forward setting out why another setting should be considered. This is a scenario when obtaining legal advice would be beneficial.

However, if there is a shared care arrangement in place, thereby resulting that both parents’ homes are where the children equally call their home, and if the parents cannot agree on an educational setting, obtaining legal advice is vital and an application to the family court may well be required.

Initially, other forums for alternative dispute resolution to resolve the dispute must be attempted, for example, mediation. If an agreement cannot be reached, a court application should be issued.

The application that would need to be made comes under section 8 of the Children Act 1989 and is for a specific issue application; to specifically address what is the best interests of the children’s education. Within the proceedings evidence shall be put forward by both parents to set out how their proposal is in the children’s best interests.

However, if one parent has taken matters in their own hands and begins the process of changing the children’s school without the other parents’ consent, that parent would need to issue an urgent application to the family court to prevent the children’s removal from that school. This also comes under section 8 of the Children Act 1989 and would be for a prohibited steps order; to prohibit the children’s removal from the school without a court order to do so. In this case, any order of the court would need to be provided to the school as well as all those with parental responsibility.

In all cases and at all times parents are strongly encouraged not just to communicate their wishes, but to co parent effectively for the best interests of their children.

If you need advice on this topic, or any other matters concerning children issues, please get in touch with our private child team at McAlister Family Law.

Divorce and school fees – Will the court make my spouse pay?

Posted on 6th July 202224th January 2023 by McAlister Family Law

Divorce and school fees – Will the court make my spouse pay?

One of the difficult parts of resolving financial issues in a divorce or separation is that, for most people, the lifestyle that they lead, their home and their expenditure is commensurate with the income which they have as a couple / family. Here, Lisa Brown breaks down how a financial dispute within a divorce can effect the school fees of children stuck in the middle.

When the couple split, that same income must suddenly run two homes rather than one and it is often the case that something has to give.

That might mean a change in the standard of holidays or cars or a smaller home but what happens when it is your child’s education at stake?

For some people trying to make the maths work on a separation, a private education becomes something which is perhaps no longer affordable and / or they may feel that other family expenditure should be prioritised. If both parties agree then potentially there is no issue but very often that is not the case.

Children, on the whole, are an emotional issue when parties separate and it may feel to one party that it is of the utmost importance that a child’s education and some consistency and normality be preserved.

On the other hand, fees for day schools are likely to be in the region of £15,000 per child per year. Boarding school will be more. Bearing in mind children can potentially be in education for 14 years this could mean a commitment in excess of £200,000 for each child. This is significant and very often there may be more than one child to consider.

So, what is the court’s view

At the outset I should say that the fundamental question of what school a child attends is not dealt with as part of the resolution of financial claims. The court on an application about finances can only resolve the issue of who pays. That may ultimately settle the dispute if the court declines to make an order and the person who wants the children to attend private education has no other method of paying but sometimes the objection is not just about the fees but the principle too.

If there was an issue whereby one party was saying that even if it were affordable the children would be better off in state education, then this would be an issue to be determined under the Children Act 1989 in line with the child or children’s best interests.

In circumstances where the only question is fees the court test is slightly different and although the children will always be the court’s first consideration there are a number of factors to look at known as the “section 25 factors” to consider and set out below:

(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(d) the age of each party to the marriage and the duration of the marriage;

(e) any physical or mental disability of either of the parties to the marriage;

(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it (although this is not usually considered in reality in the vast majority of cases)

The primary issue with school fees is likely to be balancing income and needs to see whether it is affordable for school fees to be paid whilst also ensuring housing and other needs can be met.

Where the court feels school fees are affordable, they will make what is know as a “school fees order” obliging one or potentially both parties to pay all or a portion of the fees. This obligation is on top of any child maintenance and any spousal maintenance payable.

Can capital be set aside to pay for fees by the court?

The short answer is no. The court has no power to force parties to ring-fence a sum to pay for school fees. Parties can and do agree to do this or to put funds into trust for that purpose and, indeed, one of the benefits of coming to an agreed settlement is that it can be more sophisticated than the court which can be a blunt instrument. Legal advice should, however, be sought when considering this type of structure.

Grandparents have always paid- can the court force them to continue?

Again, the short answer is no. The court has no power to force a third party continue to meet school fees although it is possible, they will consider the way school fees have been met historically when making any decision overall.

What will a school fees order cover?

Standard wording might often cover “reasonable invoiced extras” perhaps specifically excluding exceptional items such as trips, but it is sensible to give consideration to what the expectation is. Are buses covered, lunches, uniform and so on?

Conclusion

There is no easy answer to this question, and it very much depends on the circumstances of the case including income / assets, how many children there are and where they are in their education.

It is important to look at the bigger picture and the outcome of your case generally. For example, carving out a school fees fund might seem attractive because it secures your child’s future, but it might prejudice your position overall if it is the case that those fees should really be being paid from your spouses’ income and the monies set aside in the fund should be divided between you meaning you would receive more capital.

Before reaching any final financial settlement whether in relation to school fees or anything else you should always speak to an experienced family solicitor. If you have any questions about this issue, or any other family law matter, please contact our team who would be happy to assist.

New no-fault divorce proves to be very popular

Posted on 16th June 202224th January 2023 by McAlister Family Law

New no-fault divorce proves to be very popular

It has been over two months since the new no-fault divorce legislation came into force and it has proven to be very popular. Here, Fiona Wood discusses why she believes this may be and looks at the new reality of the divorce process.

In April this year new divorce legislation came into force which means that all divorces are now issued on a no-fault basis. Prior to then you could only have a no-fault divorce if you had been separated for at least two years. If you had not been separated for that long, the only way that a couple could divorce was for one of them to allege the others adultery or unreasonable behaviour and assign blame for the marriage ending. This often led to increased animosity between the couple, which could impact their ability to co-parent effectively or have constructive discussions regarding their finances.

Lawyers had lobbied for a no-fault-based divorce system for many years, as they could see the negative impact that the old system had on a lot of divorcing couples. It would appear that the public also welcome this change, as HM Courts &Tribunals Service have revealed that 12,978 divorce applications were made under the new system in April 2022. In April 2021 they received 8,729. The total number of divorce applications made in 2021 was 107,724.

A new feature of the no fault divorce legislation is that couples can now jointly apply for a divorce. Of those applications made in April 22, 2,771 (21%) were jointly applied for. Joint applications may well increase going forward, when more divorcing couples become aware that this is possible.

It is my view that the increased number of those issuing divorce applications in April 2022, is due to separated couples waiting until the new legislation came into force, so that they can have a no-fault divorce. Whilst some expressed concerns that a no-fault divorce system would make it easier for couples to divorce, my experience is that those who decide to divorce do not make this decision lightly.

Many couples spend time trying to make their marriage work. If they do decide to divorce, the majority are keen to make the process as conciliatory as possible. The increase in popularity of alternative forms of dispute resolution, such as mediation and arbitration, rather than court, to resolve issues regarding finances and arrangements for the children, when a couple divorce, shows that many who divorce are keen to avoid blame and to take a more constructive and pragmatic approach.

A Child’s Wishes and Feelings in Children Act Proceedings

Posted on 26th May 2022 by McAlister Family Law

A Child’s Wishes and Feelings in Children Act Proceedings

When proceedings concerning a child need to be issued at Court it can not only feel like an arduous task, but also overwhelming in an already worrying time. Here, Jemma Wentworth looks at how the wishes and feelings of a child are taken into consideration when a court decides what is in their best interest, and how factors such as age and understanding play a role in the decision-making process.

Proceedings may be necessitated for various reasons, for example, the need to define the time that the child spends with both parents, to address a specific issue surrounding the child such as changing their name or deciding which school they should attend, or even to determining whether permission should be given for leaving the jurisdiction.

Within Children Act proceedings, and as part of the Court process, the child’s welfare is of paramount importance and various factors need to be taken into account. These factors form the ‘Welfare Checklist’ and one of these factors is the ascertainable wishes and feelings of the child concerned, considered in light of their age and understanding.

If there is a disagreement between parents or those with parental responsibility, the Court may be asked to make decisions. In doing so, the Courts overriding objective is what is in the child’s best interests? Often, the most effective way to ascertain this is to speak with the child. This is where the child’s age and understanding plays particular significance.

An organisation called CAFCASS, the Child and Family Court Advisory and Support Service, shall be appointed by the Court and the officer dealing with the case shall speak with the child as part of the assessment process. In so doing, consideration of the Welfare Checklist forms their role, and the officer shall give full consideration to each individual child’s ability to express their view in light of their age and understanding.

Children as young as four or five shall be spoken to by the CAFCASS officer, but it shall be fully appreciated that a child of such young age is clearly limited in terms of their ability to communicate or form a viewpoint on significant life matters. Generally speaking, the older a child becomes, the more their expressed views will have relevance to the decision-making process.

Generally speaking, by the time a child is approaching High School age their viewpoint will be competently and pragmatically considered by CAFCASS, who in turn will file a report to assist the Court. Each case is determined on its own merit, but the important factor is not only a child’s age, but also their level of maturity and understanding of what is being proposed and how such decisions will affect them. These are all considerations that will be considered by CAFCASS within their report for the Court.

However, it is important to remember that not every child is the same and every case will be different. These issues need to be discussed openly by the parents with an understanding that just because a child may express a certain view, does not automatically mean that the Court will make an Order on that basis. The voice of the child is critically important to the Court, and it is only right that the child should be able to say what they would wish the Court to order. However, it is a balance of factors that the Court must take into account, and the ascertainable wishes and feelings of a child is only one of those factors. The older the child, the more the Court will consider their wishes and feelings in their decision making.

It is also incredibly important for parents to be mindful that regardless of where their child is at, developmentally, intellectually and emotionally, it is the Court who ultimately makes the decisions and therefore providing a child with the burden of the decision making could have a negative impact upon them as for some children that burden of having to ‘choose’ between parents is ultimately too much for them to carry.

If parents, and those with parental responsibility, are unable to agree important decisions for a child’s future, the Family Court alongside the involvement of CAFCASS, may well be the last resort. Having the right support and the right legal advice is crucial. Here at McAlister Family Law we have an experienced and large Children Team who will be able to navigate you through what can be a difficult and emotionally charged process.

The call for fewer Fact-Finding Hearings

Posted on 23rd May 2022 by McAlister Family Law

The call for fewer Fact-Finding Hearings

In response to recent news, Associate Melissa Jones looks at the comments made by the President of the Family Division, Sir Andrew McFarlane at Resolution’s annual conference in Birmingham.

Sir Andrew McFarlane looked at the “default position” in cases where domestic abuse allegations are made and the need to have a fact-finding hearing. His comments were “There was an urban myth among some judges that the Court of Appeal in HN said there needed to be more fact-finding. That needed to be clarified.”

The court must at all stages of the proceedings, and specifically at the FHDRA, consider whether domestic violence is raised as an issue, either by the parties or Cafcass (Child and Family Court Advisory and Support Service) or otherwise. The Court will decide whether a fact-finding hearing is necessary by reference to the revised Practice Direction 12J Child Arrangements & Contact Order: Domestic Violence and Harm, which sets out what the Family Court should do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic violence or abuse perpetrated by another party or that there is a risk of such violence

or abuse.

If a Finding of Fact Hearing is required, then this is distinct and separate from other hearings. It can be a lengthy process and on average can last anywhere between 1-3 days. In some of the most serious cases of alleged domestic abuse it can last well over two weeks.

Such hearings, often seen as “mini-trials” can be financially taxing not to mention emotionally difficult for the parties involved. It is not an easy task, and a lot of time and preparation is needed coupled with the potential of such hearing causing further damage to the already fractious relationships of the parties.

There is a fine line to be drawn but care should be taken when pursuing the need for a Finding of Fact hearing and the underlying message it that it must be “necessary”. The court has a significant workload as it is, and it is only right that the court prioritises cases that Sir Andrew McFarlane refers to as those that “really do need to be heard”.

If you are affected by any of the issues raised here, please get in touch today. We are here to help you.

Court and contact with Children – What is the process?

Posted on 19th May 202219th May 2022 by McAlister Family Law

Court and contact with children – What is the process?

Are you feeling like you are on a constant contact rollercoaster, trying to agree arrangements with the other parent or carer, and knots of worry tangle you up each week? Here, Nicola Bradley breaks down the process of applying for a Child Arrangements Order and what a successful application can mean for those struggling with contact.

Does the following apply to you? Are you asking yourself if you will get to see your child? Perhaps your message is going to be left on “read” with no response. Are you always getting messages late so that last minute plans have to be made, or feeling like you are an on call babysitter and there is no structure in place. Maybe you have attended or proposed mediation, as well as other forms of Alternative Dispute Resolution (ADR) but this has not been successful.

What can you do in this situation? It might feel like whatever you have tried before has only been met with more complications when trying to organise contact. But when you have tried everything else and nothing has worked, there may only be one option left; Court.

Should I apply to the Court?

It is common for parents to start giving themselves a hard time when court feels like your only option. But it is important to remember that being a parent or carer, although a great privilege, is incredibly challenging, and court intervention can sometimes be required to allow for a firm arrangement to be put into place. Most people see court as a last resort, but it is a real option in resolving contact issues, putting the welfare of the child at the forefront and making sure that the right outcome is found.

So what happens next?

An application for a Child Arrangements Order (CAO) is made by completing the court’s C100 form. A CAO can define who the children live with; who the children spend time with, including how often and whether that contact is supervised or not; and any indirect contact such as letters or facetime calls, including their frequency.

You can also use the C100 to apply for a Specific Issue Order (SIO) if you would like the court to decide on a particular issue, such as where the child should go to school or what surname they should have. It is also used to apply for Prohibited Steps Orders (PSO) which prevent the other parent from performing a certain action, such as removing the child from the jurisdiction.

Again, the welfare of the child is paramount concern for the court and the court has to have regard to the Welfare Checklist contained in s1(3) Children Act 1989.

the Children and Family Court Advisory and Support Service (“Cafcass”) may also be involved in your case. Cafcass are an independent body appointed by the court to make recommendations based on what is safe and, in the best interest of the child(ren). After an application is issued, Cafcass will usually speak to the parties involved and prepare an initial safeguarding letter in advance of the First Hearing Dispute Resolution Appointment (FHDRA).

In some cases, particularly where the issues are narrow, it is possible that matters could be resolved at the FHDRA. More often, the court will use the FHDRA as an opportunity to listen to the parties’ positions and make directions for further evidence to be obtained, and/or for Cafcass to conduct a more detailed safeguarding analysis known as a Section 7 Report, in advance of a Dispute Resolution Appointment (DRA).

The court typically lists DRAs for 60-90 minutes to try to enable agreement/a final order, if possible. If not, the matter will be listed for a contested final hearing before the court can determine the final child arrangements.

Whether or not the matter proceeds through to a final hearing, the court process is not a short one and generally takes between 6-12 months to complete, sometimes longer depending on the complexity of the case.

If you are experiencing difficulties agreeing arrangements for your children, please contact us as soon as possible. Our experienced family law solicitors will help you in trying to achieve the best possible outcome.

Do children always live with mum after a divorce?

Posted on 5th May 202224th January 2023 by McAlister Family Law

Do children always live with mum after a divorce?

Do children always live with mum after a divorce? Here, McAlister Family Law Associate, Melissa Jones, discusses how the courts make their decisions when it comes to a Child Arrangements Order and how the best interest of the child is taken into consideration.

In today’s modern society it is quite an antiquated idea that the court will automatically make a Child Arrangements Order, for the child(ren) to live with the mother above and beyond the children’s father or any other care giver.

That might come as a surprise to you when you look at the statistics** below:

89% of Parents with Care were female and 87% were under the age of 50
88% of Non-Resident Parents were male and 79% were under the age of 50

The above** was taken from https://www.gov.uk/government/statistics/separated-families-statistics-april-2014-to-march-2021-experimental/separated-families-statistics-april-2014-to-march-2021-experimental

Of course, times have changed and 15-20 years ago, the answer to the above question would probably have been yes. Not that it was the right thing or that it was defined in law, but that was the experience and sign of parents’ roles at that time.

That is why it is sometimes a surprise to parents, who are either in court or contemplating a court application to hear that it not guaranteed that the court will make an order for the child(ren) to live with them.

Whilst a high proportion of family law cases today normally involve disputes between the children’s mother and father, it not uncommon for cases to involve other parents/care givers such as:

Civil partners/Same sex partners
Non-Civil Partners- second parents for example
Grandparents
Aunts
Uncles
Extended family members

How does the court decide who a child should live with?

If you find yourself in the situation where you cannot agree arrangements with the other parent, you can make an application to the court for one of the following orders:

Child Arrangements Order- for the child(ren) to live with you or
Child Arrangements Order- for the child(ren) to spend with you

The law currently presumes that it is in the children’s best interests for each parent, even when they have separated, to continue to be involved in the lives of any and all of their children, unless such involvement may subject them to a risk of harm.

The Best interests of the child

Associate, Melissa Jones, recalls one of the earliest cases in her career, in the year 2011 when the Family Court granted a “Residence Order” to the father in a family law dispute as to where the child should live. Whilst the terminology might have changed, with the application now being referred to as an application for a Child Arrangements Order, she makes the following point “it should not have come as a surprise, then or now; the court’s decision making has been and continues to be based on what is in the best interests of the child”.

The most important consideration of the Court, and one which you should keep in front of mind, is that it will always consider what is in the best interests of the child, as opposed to any perceived “rights” of any of the adults involved.

The Court will determine the facts and consider the Welfare Checklist to help it decide upon what is in the child’s best interests. This Welfare Checklist includes things like the below:

the child or children’s age and maturity
physical and emotional needs of the child(ren)
wishes and feelings of the child
any harm which the child has suffered, or is at risk of suffering
capabilities of the parents to meet the physical and emotional needs of the child(ren).

In law, it is never a “one-size-fits-all approach”. Every case will have its own set of circumstances and the court will also have regard to the individual needs of the child(ren).

Shared care

In the Family Court there is a presumption of continued parental involvement by both parents, often referred to as shared care. Some parents are now used to a “shared care arrangement” or this can be ordered by the court.

Whilst for some families this may mean an equal division of time, this may not work for other families and sometimes parents often mistake shared care as meaning an absolute and strict division of time (7 days with you, 7 days with me). The children’s needs are paramount and the best interests of the children will always be at the heart of any and all decisions made.

So, can you tell me, do children always live with the mother?

The short answer is no. There may of course be times when the court says this is in the best interest of the child(ren) but equally there may be times where the court says the children should live with the father. Another example is that the court orders “shared care” so that the children spend their time between two households.

At McAlister Family Law we have the experience, compassion, and energy to achieve the best possible outcome for you. Please get in touch today. We’re here to help you.