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Your family law questions answered

PUBLISHED: 12:19 07 July 2017 | UPDATED: 12:13 25 July 2017

Under English law there is a presumption that both parents should be involved in a child's life

Under English law there is a presumption that both parents should be involved in a child's life

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Navigating divorce or separation when there are children involved can be emotionally difficult and confusing for everyone involved. Here, Jessica Palmer of Streathers Solicitors in Hampstead, offers answers to commonly asked questions

Do mothers always end up having primary care of a child?

No. There is no automatic right that a mother should be primary carer. Ultimately, it will depend upon what is in the best interests of the child. If one parent has played the role of primary carer during the relationship then it may be natural for this to continue but it will very much depend on the circumstances.

I have just separated from my ex and the children are living with me. Do I need to allow my ex to have contact with them?

Under English law there is a presumption that both parents should be involved in a child’s life and in the majority of cases this will be in the child’s best interests. You should therefore do your best to work with your ex-partner/spouse to come up with arrangements which work for both of you.

In certain situations it will not be appropriate for a parent to be involved in a child’s life and if you have concerns regarding the welfare of your child if you allow contact to take place, you should take specialist legal advice.

What if I cannot agree arrangements with my ex?

Firstly, you should consider whether mediation may assist you in reaching some form of agreement. Mediation involves both of you sitting down with an independent mediator who will assist you in reaching a compromise. Any agreement reached could then be drawn up into a ‘parenting plan’ which clearly sets out what both of you have agreed. Local mediation services can be found by looking on the Family Mediation Council Website - familymediationcouncil.org.uk

If mediation does not work and you cannot come to any form of agreement, this is when you should seek the assistance of a solicitor who can attempt to negotiate on your behalf.

Ultimately, if this still does not work, either party can make an application to the court for a Child Arrangements Order. The court will then decide what arrangements should be made.

If I end up going to court, what will the court consider when making a decision?

When deciding what arrangements to put in place, the primary consideration for both the Court and the Children and Family Court Advisory and Support Service (CAFCASS) is ‘what is in the best interests of the child?’. When determining what is in a child’s best interests, they will have to consider what is known as the ‘welfare checklist.

The welfare checklist provides for the court to take into account a number of factors including the wishes and feelings of the child, their needs, the likely effect of any change of circumstances, their age, sex and background, if relevant, and the capability of each parent of meeting the child’s needs.

Who are CAFCASS and what impact will they have on my case?

CAFCASS assist the court in helping them make decisions relating to arrangements for the children. When a case first goes to court they will do initial ‘safeguarding checks’ which will be used to notify the court of any issues that have been raised regarding the welfare of the child. This will include issues raised by the parents as well as any involvement with social services or the police.

If the case continues with no agreement being reached then CAFCASS will usually be asked to prepare a report which will make recommendations regarding arrangements for the children or any further action which they feel should be taken prior to an Order being made by the court. When they prepare their report, they will also bear in mind the welfare checklist.

The court are not strictly bound to follow the recommendations made by CAFCASS, but provided there are no issues with the way the report was prepared, the majority of the time they will do.

What is parental responsibility and who has it for my child?

Parental responsibility essentially means that a person has the power to make decisions for a child in relation to various matters such as education and medical care.

Mothers automatically have parental responsibility and so do fathers’ if they are married to the mother or the child was born after 1st December 2003 and they are named on the birth certificate.

Unmarried fathers who are not on the birth certificate or who are, but whose child was born after 1st December 2003, can acquire parental responsibility as follows:

•by entering into a parental responsibility agreement with the mother;

•asking the court to grant a parental responsibility order;

•being named in a Child Arrangements Order as the person whom the child lives with; or

•being named in a Child Arrangements Order as a person whom the child spends time with and the court feels it is appropriate to make a Parental Responsibility Order.

Can I take my child on holiday abroad without my ex’s permission?

You will need permission of all parties with parental responsibility to be able to take your child abroad. The only exception to this is if you have a Child Arrangements Order in place stating that your child lives with you. In that case, you are able to take your child abroad for up to one month without permission.

If your ex is refusing to give permission, you can apply to the Court for a Specific Issue Order to allow you to take your child abroad without it.

If my ex is not paying child maintenance, does that mean I can stop them having contact with my children?

Child maintenance and contact with the children are entirely separate matters. You should not stop contact on the basis that you are no longer receiving child maintenance as this is not in the best interests of the children and if an application is made to court, they will be critical of your actions.

If your ex is not paying child maintenance then you need to make an application to the Child Maintenance Service. A useful website for more information on applications for child maintenance and assessing the amount payable is cmoptions.org.

About Streathers Solicitors

Streathers Solicitors was established in the heart of the West End in 1976. It now has three further offices, one in Hampstead, one in Crouch End and another in Clapham.

The Hampstead office, which relocated from Highgate in 2015, provides a full range of private client, property, commercial, employment, matrimonial and family, and dispute resolution services.

Whilst working closely with the West End office, most of the team are very much part of the community and work hard with their local connections to deliver a personal service to all their clients.

For more information please contact Jessica Palmer on 020 7317 7224 or jpalmer@streathers.co.uk or visit streathers.co.uk

Streathers Solicitors, 1 Heath Street, Hampstead, NW3 6TP

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Navigating divorce or separation when there are children involved can be emotionally difficult and confusing for everyone involved. Here, Jessica Palmer of Streathers Solicitors in Hampstead, offers answers to commonly asked questions

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