Child Residence and Contact
In the event of a separation of a couple whether married or otherwise, court orders will only be made in respect of a child or children if there is a serious dispute between the couple as to the arrangements for the children.
The courts do not wish to have to make orders in respect of the arrangements for the children on the breakdown of a relationship. The courts take the view that up until the time of the separation of the couple, the parents have been able to make appropriate arrangements for the children and should be encouraged to do so even after separation.
As a consequence, in most divorces absolutely no orders will be made by the divorce court as to the arrangements for the children. If the parties have agreed between themselves as to the arrangements for the children, the court take the view that no order is necessary and will leave it to the parties to organise matters between themselves.
If there is a dispute between the parties as to where a child or children should live, then one or other party could apply to the court for a residence order. A residence order is an order that was formerly described as a custody order.
In the event that the dispute is not about who should be looking after the child but how much contact there should be between the child or children and the non resident parent, then an application could be made for a contact order. This was formerly known as an access order.
If there are court proceedings regarding the children there will usually be involved more often than not an organisation called CAFCASS. This organisation is the “eyes and ears” of the Judge. It is the duty of one of the members of CAFCASS to make enquiries on behalf of the Judge. A person from CAFCASS will speak to the parties who are in dispute and if the children are old enough, will also speak to the children. A member of CAFCASS will then report back to the Judge and will give a recommendation to the Judge as to the appropriate arrangements for the child. The Judge though has the final say as to what will be the arrangements.
In deciding upon the appropriate arrangements, Parliament has set down a checklist of matters which both the member of CAFCASS and the Judge have to consider. The checklist is as follows:
- The ascertainable wishes and feelings of the child or children concerned considered in the light of their age and understanding.
- The child or children’s physical, emotional and educational needs.
- The likely effect on the child or children if there is a change in the existing arrangements.
- The age, sex, background and any characteristics of a child or children which the court considers relevant.
- Any harm which the child or children may have suffered or be at risk of suffering.
- How capable each of the parents of the child are in meeting the needs of the children.
In making any decision as to the arrangements for a child or children, a Judge will consider all of the above factors and will apply those factors in deciding what is in the best interests of the child and thereby what arrangements should be put in place.
