The Association for Shared Parenting (ASP) is approached for help by parents and grandparents of either gender who find themselves in difficulty over arrangements for the children after the parents have (or are) divorced or separated.
It is often the case that emotions between the parents are running high, with many unresolved issues making placing their child’s welfare as the paramount concern difficult to concentrate on.
- Family law in the UK is broadly divided into Private Law and Public Law.
- The former concerns children who are caught in the middle of arguments and disputes between their parents/guardians and the latter concerns children who are taken into care by a local authority. Both elements were formerly under the auspices of The Children Act (1989).
- The Children Act 1989 contained the familiar terms surrounding what was available if a parent or grandparent resorted to the courts under a private law application.
- Contact Order
- Residence Order
- Specific Issue Order
- Prohibited Steps Order
These terms attracted continual criticism over the years for being interpreted as empowering one parent over the other. These in turn replaced even earlier (pre Children Act 1989) terms such as Care and Control and Access which clearly empowered one parent at the expense of the other. Care and Control for instance was meant to be Care and Control of the child but was freely interpreted as control of the whole situation and in particular the other parent.
The words Access and Contact are however survivors, still being used to describe, in lay terms, often in the Press, what a displaced parent is striving for. They have no legal status.
- After prolonged debate and argument within the legal system and much campaigning from support groups a change was eventually made with the introduction of the Children and Families Act 2014.
This time a determined effort was made to strip away any suggestion that empowered one parent over the other.
- In summary, the main changes made by the Children & Families Act 2014 were:
At Section 10 -the requirement to attend a mediation information and assessment meeting (MIAM) is now mandatory before an application to the court can be made.
At Section 11 – Introduced a presumption that parental involvement will further the welfare of the child.
At Section 12 – Replaced Contact and Residence Orders with the neutral Child Arrangement Orders (CAO). This single order regulated arrangements relating to with whom a child lives, spends time with and when.
Ironically, when the details of a Child Arrangement Order are spelled out for clarity, they are remarkable similar to the previous Contact and Residence orders and are still liable to be misinterpreted by parents, solicitors and judges.
At Section 13 – Introduced new rules on expert evidence in child care cases.
At Sections 14-16 – Addresses timetables and time limits in the production of care plans – Public Law cases.
At Section 17 – Under the Matrimonial Causes Act 1973 -s41 and s 63 the courts had discretion to refuse divorce/dissolution on the grounds of hardship to children. These sections were repealed.
With the introduction of the Children and Families Act 2014 the old Magistrates and County Courts were no longer able to deal with family proceedings. A new court was brought into existence – the Single Family Court which can sit anywhere in England and Wales and perhaps a little confusingly, will normally sit in the county or magistrates court building.
A Typical case.
Let us imagine therefore that a new case has come in.
Mum or dad is saying that the other parent is making it very difficult for them to be part of the life of the child they created. Accusations and allegations are flying back and forth, new partners may be chipping in their penorth’ and the wider families are dividing on a tribal basis – sadly a ‘normal’ imbroglio.
ASP will listen to the details of each case and offer helpful suggestions as to how matters might calm down. Our sole interest is the welfare – the best interests – of the child. We do not promote so-called fathers’ rights or so-called mothers’ rights. It underpins all UK Family Law that the only party with rights is the child.
There may be a host of other factors causing difficulties – we will list some of the more common:
- Drug use
- Alcohol abuse
- Domestic violence
- Medical/health issues
- Special needs of the child
- Financial problems
- Accommodation difficulties
- The distance between the parties
- Shift work
- Religious differences
- Cultural differences
- One parent with the child moving away or even going abroad
- Dialogue between the parents ceasing
- Unresolved issues from the relationship
- A dysfunctional family ‘script’ spilling over the generations.
Once brief details of the case have been taken, ASP draws out more background by listening and asking questions, either face-to-face at a support workshop or via an exchange of emails.
(This process is subject to the caution that we normally hear only one side of the problem.)
Options can then be outlined.
Option 1 Do nothing.
The situation can sometimes resolve as the parties grow tired of arguing and eventually settle down.
The disadvantage is that a negative status quo can become established – making future action more difficult.
Option 2 Reach a private agreement.
These can take a multitude of forms. They may be negotiated via the MIAM process, between solicitors, between the parties or just be an informal arrangement. All share the commonality of being outside the court process. Accordingly they will carry no legal force but can be beneficial should the matter go to court later.
Option 3 Commence the legal process.
This decision should be the last resort. Attitudes can harden, accusations and allegations can emerge and one parent may attempt to influence the child and turn it against the other parent.
On the other hand it may be the only route to find a solution to a seemingly intractable situation.
If the decision is made to launch an action then a preliminary step is to decide whether to engage a solicitor, act in person or seek the help of a McKenzie Friend.
Solicitors are in business and must charge for their expertise and time.
Charges can quickly escalate although some will offer an initial 30 minutes free of charge. It is essential to understand what the eventual cost might be and to budget accordingly. A relatively simple case could well run up a bill for £4 -5K whilst a more complicated case could involve sums of over £100K.
Act in Person
Such individuals are known in legal circles as ‘Litigants-in-Person’ (LIPs). The advantage of this course is a saving in fees but the downside is that for most people the legal system is a mystery. This causes considerable irritation to the courts as individuals fill out either the wrong form or the correct form incorrectly, do not understand what happens in a court, simply waste much court time and succeed only in frustrating the judge.
Even worse, others may embark on a course of seeking to reform the entire court system or read up a couple of law books, research on the internet and then attempt to ‘teach their grandmother (the judge) how to suck eggs’.
ASP does not advise this course unless it is clear that the individual can speak clearly, has an understanding of the limitations of the legal process and an understanding of what can happen during a hearing.
The last 25 years or so has seen the emergence of what might be regarded as a halfway house, whereby individuals will offer to assist the LIP with the mechanics of the legal system and offer lay advice on how best to proceed. These people are known officially as McKenzie Friends.
Part of the legal establishment will welcome their involvement, seeing them as being able to moderate excesses in LIPs and smooth the court process, whilst part of the legal establishment sees them as some sort of unfair competition and would like them heavily curtailed.
It is vital for a LIP to realise that a McK cannot normally speak in court. Only in very rare circumstances will the court give permission for the McK to help with the presentation. McKs are allowed to sit with the LIP, to make notes and offer very quiet advice to the LIP as the hearing goes on.
Just prior to the hearing it is often the case where the parties representatives will seek to negotiate an agreement to make the court hearing simpler. Sometimes a courteous solicitor will happily include the McK in these discussions and sometimes they refuse to speak to a McK, adding to the frustration felt by the LIP.
Some McKs act voluntarily, some will ask for expenses only and some have set up as a business and will charge for their time.
Caution must be exercised when searching for a McK as some- mainly those who advertise on the internet, boast fancy websites and make extravagant claims but somehow fail to make clear the legal limitations of their ability to assist. This can lead the unwary into imagining that they are some sort of cut-price solicitor. Whilst some may have a legal qualification most have set up on the back of their personal experiences. Be aware!
First step if you chose to have a solicitor represent you is that the solicitor will write to the other party seeking to find a negotiated solution. This is likely to trigger the other party engaging their solicitor and note what was said earlier about attitudes starting to harden.
Under Section 10 of the Children and Families Act 2014 – before making an application a person must attend a MIAM meeting. (Note: the obligation is only to attend the meeting, not engage in mediation or attempt to resolve the dispute.)
The next step is to fill in a C100 document to commence the legal process. If you choose a solicitor they will go through it with you, fill it in and send it to the court. They will also advise the other party that an action has been launched.
Once the C100 is received by the court the case will be listed for a preliminary hearing and a copy of the application will be sent to the Children and Family Court Advisory and Support Service – CAFCASS.
These people will look for any issues that mainly concern the safety and welfare of the child and conduct an interview with the parties which may consist only of a phone call. The results of this process are called Safeguarding letters which become part of the court file. These preliminary investigations usually involve contacting social services and the police to find out if the parties and/or the child are known to these agencies.
The first hearing (formerly called a Directions Hearing) will seek only to acquaint the court with the basic facts and issue directions as to the next step.
Sometimes it is possible for the court to make an interim CAO order but only if the court is satisfied that the child is safe etc.
The court will then set a date for a longer hearing, where statements are called for and the issues in dispute can be fully explored. These are often described as Final Hearings perhaps in an effort to get the parties to concentrate on finding a resolution.
At this point cases can indeed settle down but unfortunately for other cases it is simply the start of years of litigation as Orders are made, breached or ignored, new allegations and accusations surface and it becomes almost a second job.
(BA(Hons) Law & Practice
and David Collins
Trustees Association for Shared Parenting – Registered charity 1042874
Some content courtesy of Coventry University.