Children Issues – suggestions for settling your differences without going to court

Family | 3rd May 2018

With some trepidation as to how family lawyers would be portrayed on TV, I sat down to watch “The Split” (on BBC1 on Tuesday nights). One of the storylines concerned a meeting at a solicitor’s office with parents and their solicitors (Hannah and Nina, who were sisters!) to try to agree arrangements for their son to see his father. In brief, the father, who was a comedian, wanted to include deeply offensive material in his comedy routine about the mother. The mother was refusing to allow the son to stay with the father if he persisted in using this material. Rather inappropriately, but no doubt for dramatic effect, the son happened to be sitting in another room at the solicitor’s office while the meeting was taking place.

Although there were many aspects of the storyline which had me muttering under my breath, “that would never happen in real life”, it was good that it at least showed that children issues do not always have to end up in court and are usually best dealt with by the parents agreeing matters away from the court.

Whether you are married, in a civil partnership or living together, the breakdown of a relationship can be an emotional time. If there are children involved, the feelings of hurt and anger can be magnified. However, this is the time when your children need you to be at your most level-headed. With Legal Aid now only offered in a handful of cases, more couples are trying to resolve their differences without going to court. While it may not be possible in every case, settling issues such as arrangements for the children without appearing in front of a court can be the best way to re-establish your separate lives, while maintaining as close a family unit as you can.

Who has Parental Responsibility?

You may need to know one or two points of law before you begin discussions with the other parent. If you’re coming out of a marriage, it’s important to remember that both parents have Parental Responsibility, if you were married at the time of the child’s birth. Parents with Parental Responsibility (“PR”) have an equal say on fundamental decisions concerning their children’s education, health and religion. If you weren’t married, PR is automatically given to the mother. However, unmarried fathers who registered or re-registered their name on their child’s birth certificate after 1st December 2003 will also have Parental Responsibility for their child.

Please note that, if the child was born before 1st December 2013, even if the birth certificate includes the name of the unmarried father, the father will not have automatic PR (unless obtained by other means).

Parents can agree to share PR at any time during their relationship or separation by signing a Parental Responsibility Agreement.

What should you consider?

Any direct discussions between the parents about the children would benefit from taking place in a neutral environment, away from the children in order to encourage a civil, calm and respectful dialogue. Focus on what is best for the children, both in the short and long term. There will be several points to consider, including:

  • With whom the children will live – this can be a shared parenting arrangement and the time with each parent does not need to be exactly equal to still be a shared arrangement
  • Who will the children see and on which days. This could include wider family, too
  • How the children can maintain contact with both parents e.g. texting, FaceTime, by email
  • How the main school holidays will be divided including long weekends, special days such as birthdays and traditional days. Consider alternating at which parent’s home the children wake up on Christmas Day each year
  • How the children will get to school, medical appointments and out of school activities.

Making a Plan and Sticking to it

Not all parents are able to communicate in a calm and rational manner, especially if the separation has been acrimonious. The emotional impact of a separation can make face-to-face communication challenging, but often a meeting away from the home over a coffee (without the children present), can work. However, where couples are unable to meet face to face, there are still options available, including text messages, emails, phone calls and even asking a mutual friend or family member to act as a go-between, until the inevitable heightened emotions of a separation have eased.

In the event that agreements can be reached, parents might want to record their decisions in the form of a Parenting Plan.

While not legally enforceable, a Parenting Plan can be a good tool to help both parties keep to what they have agreed. The plan can be augmented in the future, should the need arise.

Mediation

If sitting and talking with the other parent is more destructive than constructive, you might want to consider using a mediator to resolve any issues you have. Mediators are not able to provide legal advice but they can give guidance about what the possible outcomes would be if the parents are unable to reach agreement with each other; they are there to encourage an environment in which both parents have the opportunity to raise their concerns, safely and without the stress of appearing in front of a court. Mediation is often advisable, as many courts require evidence that the parents have been to mediation before they will allow proceedings concerning children to proceed.

The break-up of a family unit is stressful for everyone involved, but for the children most of all. If you can agree on issues such as future parenting arrangements without going to court, you may find this establishes a really good level of communication for the years to come as parents and will ensure that you both put the children’s best interests first.

As for “The Split”, I will carry on watching to see what is next in store for Hannah and Nina.

 

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Julian Waldon

Associate, Family

Julian has extensive experience in family law and in particular high net worth financial cases. Qualifying in 1988, Julian’s career has included p...