Can I get custody of my children?

child custody

Can I get custody of my children?

It is not unusual in a family law case for a client to ask us “Can I get custody of my children?”

Partner and children law expert Ruth Hetherington explains.

Firstly, it’s important you understand that the concept of child “custody” no longer exists in English law and indeed has not done so since 1989. Having said that, we understand that many people undergoing separation or divorce think of looking after their children and having those children live with them in terms of custody. Since 1989 this has been known as Parental Responsibility, which is automatically acquired by a mother on the birth of a child, and by all married fathers, and all fathers whose names are on their child’s birth certificates.  

Many will ask us who will get custody or talk about sharing custody or want to know their rights regarding custody. The answer to this question is that, save in exceptional circumstances, both parents will retain Parental Responsibility during the child’s minority and the Court expects them to use this responsibility to decide with which parent the child will live, and how the other parent will spend time with them. We accept that when the media still reports that such-and-such a celebrity is going to court over child custody, or watch a film where one parent fights for custody of the child (Kramer vs Kramer being perhaps the most famous and enduring example of this), this confuses parents when separating.

Child Arrangements Order

The best arrangements are those that are agreed between the parents, and which suit their family’s own circumstances; as stated above, this is what the Court expects.

For those who can’t find a way to reach an agreement, that is, you and the other parent cannot agree where your children will live and when and how they will spend time with each parent – then you need to instruct a solicitor to apply to the Family Court for a Child Arrangement Order  so that each adult can spend time with and/or live with the child or children. But before you go down this path, we would urge you to first attempt mediation, which is where an independent third party will listen to both sides and try to help you, as a couple, reach an agreement.

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 decide upon what is in the child’s best interests. A “presumption of continued parental involvement” exists, but this should not be mistaken as a presumption of shared care, or even a guarantee of direct or indeed any, contact.  Rather it is an acknowledgement that parental contact with a child is assumed to be in a child’s best interests, providing of course there are no welfare issues why this should not be the case. 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 age, physical and emotional needs and wishes and feelings of the child, any harm which the child has suffered, or is at risk of suffering, and will consider the child or children’s age and maturity. In addition, the Court will also look at the capabilities of the parents to meet the physical and emotional needs of the child.

Shared care

One thing it is important to remember: there is a presumption of continued parental involvement by both parents, often referred to as shared care. It is worth bearing in mind that continued parental involvement does not mean a specific division of time: that is, it’s not necessarily a 50:50 arrangement. Again, we must stress that the Family Court will always look at cases on an individual basis, and the best interests of the children will always be at the heart of any and all decisions made. An order made by the Court is legally binding, which is why you should bear in mind that it may be more advantageous to come to an agreement outside of that Court system, so that you, and your ex, can agree a mutually beneficial, and considerate, system of flexibility so that you can both adopt an arrangement that allows for the sometimes unpredictability of real-life commitments.

 

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

Can I move away from my ex, and take our children with me?

moving away from your ex and taking your children with you

Can I move away from my ex, and take our children with me?

It has often been said that some of the most contentious litigation occurs when there is a dispute over one parent moving away with the children in the face of opposition from the other parent.  Associate solicitor Paul Reay explains.

I want to move away with our children, but my ex opposes this

Irrespective of whether the proposed move is to another part of the same country, or to the other side of the world, the strength of feelings created are often the same. Whilst sometimes these moves can be agreed between the parents and appropriate arrangements made, more often than not, such cases involve parties whose positions are polar opposites; one who would wish to move and one who strongly opposes it.

Relocation, relocation, relocation

It goes without saying that to move to a different part of the country – or a new country entirely – will have significant consequences.  Take for example the case where two separated parents share the care of the child equally between themselves. This arrangement was most likely possible because the parents lived near one another.  If, however, a distance is established then the amount of time the children spend with each parent is inevitably affected. Even a move of only two hours’ drive away would most likely render the continuation of the previous arrangement impossible. The impact of such a move on the children would also be significant: they will need to become accustomed to living predominantly with one parent whilst spending time with the other during school holidays or at weekends, they will have to start a new school, make new friends – the list goes on.

Due to the fact that such cases have a grave effect on children, such cases are determined very carefully by the Court. In recent years, the Court of Appeal has considered a number or cases involving internal and external relocation and been required to assist – and at times remind – other judges and practitioners of the correct process to adopt when dealing with such cases. Further guidance was also provided in the decision in Re C [2015] EWCA Civ 1305. (https://www.familylawweek.co.uk/site.aspx?i=ed153303)

Having considered the Judgement of Lady Justice Black when determining the case of Re C [2015], it is I hope of use to anyone in this predicament that I highlight some of the important points raised within that Judgement: by doing so, if you are considering to relocate or in fact, trying to prevent someone from relocating, then I hope you will know what to expect from the Court.

Internal and external relocation – do they differ?

For a number of years, it was argued that cases involving one party relocating outside of the UK should be treated differently from those cases involving one party simply trying to relocate to another part of the UK. In Re H (children) (Residence Order) EWCA Civ 1338 [2001] 2 FLR 1277 (https://www.childreninlaw.co.uk/knowledgebase/re-s-leave-to-remove-from-jurisdiction-securing-return-from-holiday-2001-2-flr-506-fam-div-hogg-j/) Thorpe LJ postulated possible arguments for a different approach to be taken to internal and external relocation cases, yet could not find a particularly satisfactory foundation for it. A perfect example of why such an approach could cause problems can be found in the case of Re F (Internal Relocation) [2010] EWCA Civ 1428 [2011] 1 FLR 1382 (https://www.tandfonline.com/doi/abs/10.1080/09649069.2011.617074)  In this case, one party sought to move from the North East of England to one of the Orkney Islands. Although still within the UK, when looking at this move in further detail, such a move would be just as much, indeed if not more, of a geographical and logistical barrier as a relocation abroad. Put simply, it is easier to travel from Newcastle to Paris than it is from Newcastle to the Orkney Islands.

Black LJ concurred with the view of Thorpe LJ as she agreed that there was no justification to distinguish between internal and external relocation cases.

If the Courts do not differentiate between internal and external relocation, then what do they consider when deciding such cases?

Black LJ, in Re C has reaffirmed the position that ‘the welfare of the child is paramount’. In K v K (relocation: Shared Care Arrangement) [2011] EWCA Civ 793 [2012] 2 FLR 880 and Re F (Relocation) [2012] EWCA Civ 1364 [2013] 1 FLR 645 it was established that this was the only principle to be applied when determining an application to remove a child permanently from the UK, and it now appears that the same principle applies to cases involving internal relocation.

Child welfare is paramount

When considering child welfare, the Court will undertake a holistic balancing exercise, considering all aspects of the Welfare Checklist (Section 1 (3) of the Children Act 1989) even where it is not statutorily applicable. This exercise is not a linear one and may vary hugely case to case.

It is important to consider Black LJ’s full judgement in Re C, yet I feel it is rather refreshing that Black LJ made clear that child welfare is paramount and that the Welfare Principle in Section 1 (1) of the Children Act 1989 will dictate the result in internal and external relocation cases.

Having had experience in dealing with both internal and external relocation cases, I know first-hand that cases of such a nature are finely balanced and can often bring great sadness. There are no winners.

If after careful analysis, the Court find that it would be in a child’s interest to relocate to another part of the world or even part of the UK, then it is imperative that differences are immediately placed to one side and that the party who is relocating does all s/he can to ensure that any children involved can maintain their relationship with their other parent.

Right of contact

It should never be forgotten that the Right of Contact is the Right of the Child, and not the parent that they live with. It is always in a child’s best interests to have a relationship with both their parents, unless there are significant welfare concerns that would prevent the same. We are blessed that we now live in an age where we can sit and talk to a relative in another part of the UK or other country, face to face, by the click of a button using Facetime or Skype, or Zoom or whatever digital platform is available to you. I urge parents who may live many miles apart to take advantage of this technology and actively encourage their children to say hi to their dad using Facetime or to tell their mum about their day on Zoom, as to receive such calls for one parent will mean a great deal.

Are you contemplating relocation? Are you not seeing your children as often as you would like? 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.

Parental alienation or implacable hostility?

parental alienation or implacable hostility

Is parental alienation the same as implacable hostility?

Is parental alienation the same as implacable hostility? Sadly, they are both frequently heard terms in the Family Courts.  Partner and Head of our Private Law, Children Division Ruth Hetherington explains.

In my view there are subtle differences between the two, although they can both be present in a family case.

Parental alienation

This is a form of manipulation and/or psychological harm that is caused to a child by a parent, or other adults surrounding the child.  It can be direct or indirect. but either way, it involves the child.  The child may not realise it, and may not want to accept it, but it may make that child feeling very loyal to the parent with whom they spend more time.  In some cases, a parent will present as promoting the children to spend time with the other parent, but then alienate the children by their own actions, words or deeds.

Implacable hostility

This does not necessarily involve the child directly.  It is something that a parent may feel, for whatever reason.  There can be entirely legitimate reasons why a parent feels the way they feel, and no two cases are the same. A parent who is implacably hostile does not necessarily mean to manipulate their children to make them feel the same way as they do, but this does not mean that the children are not affected. Children easily pick up on how a parent is feeling and then react in a way which makes them resistant to any contact.

Causing harm

Both parental alienation and implacable hostility can be harmful to children and the relationships they have with their parents and members of extended families.  Both can cause long term and lasting effects for children.

The Courts start from the premise that children should have a relationship with both parents. where it is safe to do so. Whilst adult conflict is likely to be present when parents separate, you need to do everything possible to protect your children from this.

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

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