A relationship breakdown often means a dramatic change in life for all involved and when parents live apart, arrangements need to be agreed about how and when children will see each of their parents.
If a couple can agree arrangements between themselves, it will be beneficial for all concerned and it will have a positive impact on the child’s wellbeing. That arrangement can be formalised by a solicitor to ensure there are fewer disagreements moving forward. However sometimes relations are not amicable and if one parent is being prevented from spending time with their child, they may need to apply for a child arrangements order to secure their right to access.
‘Where there is a dispute between parents over access arrangements, it can be helpful to understand at an early stage how the court will consider the child’s welfare,’ says Avril Croud, family law expert at Hatten Wyatt in Gravesend. ‘If each parent can set out their expectations and be realistic about the compromises which can be made, it is more likely to lead to a positive outcome for the children.’
The welfare checklist
The Children Act 1989 states that the welfare of the child must be the paramount consideration. When it comes to welfare, the Act stipulates a number of issues that should be taken into account. It is helpful to have these in mind, though some will undoubtably play more prominence in your own family circumstances than others.
The checklist stipulates the following considerations:
(a) the child’s ascertainable wishes and feelings, considered in the light of age and understanding; the older your child is the more weight a court would place on their own wishes and feelings about when they want to see each of their parents. It is important to ensure any wishes your child expresses are their true feelings on the matter and are not reflective of what your child thinks you want to hear. Depending on the age of your child, you may decide that they should be spoken to by someone independently, and they should be reassured that they will not be in trouble or offending either of their parents by saying what they feel.
(b) the child’s physical, emotional, and educational needs; both parents need to be mindful of any additional needs their child may have, and how these can be best met. For example, if one parent has typically taken charge of meeting additional medical needs, does the other parent now require some additional support or training to bring them up to speed in meeting those needs too.
(c) the likely effect of any change in circumstances; this will depend on the character of your child and could also be influenced by any additional needs they may have. For example, an autistic child may struggle with a change in their routine. Both parents need to work together to try and minimise this disruption to their child and to think ahead as to how changes can be best managed.
(d) the child’s age, sex, background, and any characteristics of which the court considers relevant; an older child will have a different level of independence and needs to a younger child. Arrangements for your children will likely have to change as they grow older in order to continue to meet their needs. Your child’s background can also come into play in what is best to meet their welfare needs, this includes their cultural background. For example, if your child has family that are Indian, then it is important for them to be given the opportunity to explore and learn about Indian culture and traditions as they grow up. This can be an important factor when parents are from different cultural backgrounds.
(e) any harm which your child has suffered or is at risk of suffering; if issues of neglect or abuse have been a feature or concern, then a careful investigation into the potential safeguarding issues for your child will need to occur. In many of these situations it will be necessary to involve the local social services team. It is important to be aware that harm can occur to a child through them witnessing abuse of another, for example by seeing domestic abuse in the home.
(f) the capability of each parent to meet the child’s needs; if either parent has any disability or other issue which impairs their ability to look after the child, then consideration will need to be given as to how this can best be overcome in order that your child can grow up knowing each of their parents.
Once you have considered the welfare factors, you then need to look practically at how suitable arrangements can be achieved. This will usually mean trying to agree with your former partner how access will work.
How we can help
There are a range of options for access, which can be either direct, as in face-to-face contact, or indirect via letter or electronic communications, and our solicitors can help you to agree suitable arrangements.
If want some preliminary advice on access arrangements for your children, please contact Avril Croud in the family law team on 01474 351199 or email avril.croud@hatten-wyatt.com.
Hatten Wyatt has offices in Gravesend, Chatham, Maidstone, Tenterden and Tonbridge.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.