Child arrangements after separation
Divorce and separation can be more painful when children are involved. Following separation, international parents may feel uncertain about who will have day-to-day care of the children and how arrangements can work practically in terms of visas, sponsorship, accommodation, and work-related benefits. One parent may be concerned about losing regular contact with their children, their children relocating overseas or being unable to take them on holiday or visit grandparents. Both parents may have concerns about how decisions will be made regarding the children and be unsure of their rights, especially in a foreign country.
Which laws apply?
Usually, the law of the country in which the children are resident applies to issues concerning their care. However, there are exceptions for British families living overseas. Occasionally, the English court will allow an application concerning children living overseas if their parents are divorcing in England or Wales. In exceptional circumstances, the English courts will also step in to make orders concerning British children living overseas if the laws in the country in which the children live are culturally very different.
Please speak with one of our international children lawyers for advice on jurisdiction and applicable laws for children disputes if you live overseas, or you are a multinational family living in England.
Children disputes under English law
The Children and Family Act 2014 repealed the former law that required courts to consider the outcome of children during divorce proceedings, and to sanction any agreements about child arrangements between the separating parties. Now, children disputes are handled separately from the divorce.
The term ‘child arrangements’ refers to what happens to the children following a separation. Section 8 of the Children and Families Act 1989 governs ‘child arrangements’ orders. These orders are implemented to regulate children’s living arrangements, including where and when they live and have contact with any person. There are no ‘usual arrangements’ for child arrangements. The court considers the individual circumstances of a particular child and decides based on what is in their best interest.
A child can be specified to live with more than one person. If this happens, they will either receive a ‘shared’ live with order, or a ‘joint’ live with order. The former occurs when a child lives in two separate households, such as when parents are divorced, and the child lives in-between homes. The latter occurs when the people live together, such as a mother and stepfather.
Our lawyers will discuss what laws will apply to your matter and advise accordingly. Our aim is to ensure that you and your children are protected, and long standing, workable arrangements are made between parents.
The court process for determining the outcome of a section 8 application begins in four parts:
- Meeting about mediation (MIAM)
- Children and Family Court Advisory Support Service (Cafcass)
The MIAM is required unless there are any applicable exemptions, such as if there has been attempted mediation within the last four months, or if the client provides evidence of domestic abuse. It is an appointment with a mediator that explains the benefits and suitability of mediation specific to the case.
Following the MIAM, an applicant uses form C100 to make an application. If there is alleged harm to the child(ren), then a C1A (‘harm form’) is made as well.
The court then considers whether to grant leave if the applicant requires it to pursue the application.
Finally, Cafcass manages safeguarding and sends their checks to court.
Once at court, the process begins with the First Hearing and Dispute Resolution Appointment (FHRDA). This hearing is used to determine what the contents of the case are, and what steps should be taken before a decision can be made – this involves the judge giving directions on filing evidence.
Again, the court is there to decide what is in the best interests of the child, and the court uses a welfare checklist to cover a wide range of factors. In complex cases, the court may require expert evidence to ascertain facts. A commonly used resource is for a direction to be made to Cafcass to prepare a section 7 report in which they will speak with the children and consider other evidence. After reviewing all the necessary information to make an informed decision, the judge will look to make a final order.
Specific issue and prohibited steps applications
Under section 8 of the Children Act 1989, parents and guardians who disagree on issues regarding the children’s upbringing, can apply to court for a judge decision using a ‘specific issue’ or ‘prohibited steps’ order.
A specific issue order is used to inquire on specific issues about how a child is being raised, such as which school the child would be best suited to attend or planning holidays outside the jurisdiction.
A prohibited steps order can prevent a parent or guardian from exercising some aspect of their responsibly, for example in deciding to remove a child from their school.
These orders can only be used regarding the exercise of parental responsibility. They cannot be used for circumstances which indirectly relate to the children such as financial settlements.
‘Parental responsibility‘ is a phrase used to describe the rights, duties and powers that an individual has over a child by law. Parental responsibility is acquired by the mother at the birth of a child, and by the father if he is married to the mother or acquired it by other means. Read more about obtaining parental responsibility as an unmarried father, or other relative by reading our Parental Responsibility advice page.
Relocation with children
International families living overseas often consider relocating back to their home countries after divorce. But what if these home countries are different for each parent? If one parent relocates to another country (or region) without the permission of the other parent, this could constitute parental child abduction. This is even if the parent relocates back to their home country with the children.