Danielle Taylor | 26th October 2018

Legal Mythbusting: Divorce and Children


Danielle Taylor | 26th October 2018

Legal Mythbusting: Divorce and Children

Following a relationship breakdown leading to a separation or divorce, concerns over the arrangements for the children are often at the heart of disagreements between couples. Some of this can be fuelled by misconceptions about the law surrounding children and uncertainty about the future or the arrangements moving forward.

Presumptions in respect of certain set arrangements for children as “normal” are no longer a feature of case law. In the Victorian era there was a presumption in favour of the father maintaining control of the children and later there was a presumption in favour of children remaining with their mothers. Modern day law does not utilise any such “usual arrangement”.

Divorce and children : The court’s stance

The court’s starting point when dealing with applications relating to children is as set out at s1(1) of the Children Act 1989; “When a court determines any question with respect to (a) the upbringing of a child… the child’s welfare shall be the court’s paramount consideration.”

The court does apply a “presumption of parental involvement”. s1(2A) of the Children Act 1989 states “A court… is as respects each parent [who can be involved in the child’s life in a way that does not put the child at risk of suffering harm] to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare”. The court therefore starts from a presumption that it is beneficial to a child to have involvement with both parents (unless to do so would create a risk of harm to a child).

This only applies in relation to the parents of the child. It does not include step-parents or other people with whom the child may live. “Involvement” is of course quite a general term. There is no presumption in respect of the arrangements for the children and there is no starting point for the court to begin looking at. Each family will have different dynamics and must be looked at individually. There is no presumption of a 50:50 shared care arrangement, alternate weekend arrangement or any other split in time between parents. The suitable arrangements for the children in each matter will depend upon the circumstances.

Some parents come to an agreement about the arrangements and want this to be formalised in a court order. The Children Act 1989 states “[the court] shall not make [an order] unless it considers that doing so would be better for the child than making no order at all” (s1(5)). This is known as the “no order principle”. Where parents are in agreement regarding the arrangements for the children, unless there is a very good reason to the contrary, the court will decline to become involved and make an order. Where parents are in agreement, there should be no need for a court order to be put in place (save for in exceptional circumstances).

Once arrangements are agreed, neither parent should unilaterally change the agreed arrangements for the children. Changes should be agreed with the other parent if possible and if there is a disagreement then the parents should try to resolve this through mediation or other dispute resolution methods.

There is also a concern that if a divorce petition is based on adultery or unreasonable behaviour, this will have an impact on the arrangements for the children (with the respondent being “punished” for their behaviour). This is not necessarily the case. Domestic violence may be relevant in respect of the arrangements for a child, as the court needs to consider any potential risk of harm to the child (already suffered or likely to be suffered). However, having an affair with a third party or milder unreasonable behaviour is unlikely to be of critical significance within Children Act proceedings. The focus is on the welfare of the children and determining what would be in their best interests. In accordance with the presumption of parental involvement, a “no contact order” will only be suitable in very rare (and often quite extreme) cases.

Largely, the court will have regard to the welfare checklist as set out in s1(3) of the Children Act 1989. This sets out the factors that the court will have regard to when being asked to determine the arrangements when parents cannot agree.

There remains a requirement to attend a Mediation Information and Assessment Meeting with an accredited mediator prior to commencing Children Act proceedings (save for certain specific exceptions). Parents should try to come to an agreement outside of court proceedings wherever possible. On separation or divorce, many of the issues stem from a breakdown in communications and friction caused by the end of the cohabitation/marriage. Some parents benefit from attending Separated Parent Information Programmes, which can assist with how to deal and communicate with the other parent following separation. Mediation can assist with facilitating discussions between parties. Solicitors’ correspondence can also create a buffer between recently separated parties to assist in breaking down the differences between couples to come to a resolution that is in the children’s best interests.

Court proceedings remain a last resort. They are usually required in circumstances where mediation has broken down or where parents are in polarised positions. This can be in respect of the overall arrangements for the children or a specific point (such as where the children should attend school or where in the country they should live).

Ultimately, where parents can come to an agreement they are better placed to make decisions about the arrangements for the children than a court is. Most parents are able to do this and it is the minority of cases that require any further intervention. Where parents can’t come to an agreement, they may need some assistance from a third party, either through mediation or solicitors’ correspondence in the first instance.

If you have any issues concerning arrangements for children on divorce or separation please contact a member of the Family team. If you would like to find out more about the services we provide, please visit our web page “Children Law