If you are separated or divorced, you will probably have an arrangement with your ex-partner dealing with where your children live and how often they see their other parent. However, a specific issue might arise not covered by this agreement and on which you do not see eye to eye, for example if one of you wishes to relocate and the other objects. Discussing the issue with a family solicitor as soon as it arises will help you reach an amicable solution.
Both parents usually have parental responsibility for their children, which means a child’s mother and father both have a duty to make important decisions about how they are raised, educated and looked after. Even parents who are still together can disagree on issues relating to their children, but for separated parents reaching an agreement can sometimes be very difficult. Common areas of dispute include:
relocation within the UK or abroad;
taking children on holiday;
change of surname;
education and schooling, particularly whether a child should have a religious education;
medical treatment;
religious upbringing; and
preventing someone from having contact with a child.
Reaching agreement
Where you and your ex-partner cannot agree on an issue, you should contact your solicitor as soon as possible. Family lawyers are experienced in dealing with disputes between parents and can help you negotiate with each other. If negotiation does not work, your solicitor will probably refer you to mediation where you can try to settle the matter with the help of an independent expert.
It is important to remember that attending a mediation information and assessment meeting is compulsory, and the family court will usually not accept an application unless you have done so. If you are able to resolve your dispute through mediation, it will also be quicker and less expensive than going to court.
Specific issue orders
If mediation is unsuccessful or inappropriate, the court can be asked to make a specific issue order. This is a formal order under the Children Act 1989 and can relate to any aspect of parental responsibility. The court cannot use a specific issue order to resolve residence and contact matters, which must be dealt with separately under a child arrangements order.
A specific issue order can however be made alongside other orders, such as child arrangements or prohibited steps orders. For example, a specific issue order may be made for the return of a child who has been taken abroad without the other parent’s consent, together with a prohibited steps order preventing that parent from taking the child abroad again.
Applying to court
A child’s mother, father, and anyone with parental responsibility can apply for a specific issue order. Other people, such as grandparents, can also apply but they must first get permission from the court. When the court receives an application, it will arrange for a hearing to be held with both parents. An adviser from the Children and Family Court Advisory and Support Service (Cafcass) may also be at the hearing, or be asked to provide a report to help the court make a decision.
At the hearing, the judge will try to work out what you do and do not agree on, and if your child is at risk in any way. They will encourage you to reach agreement if this would be in the child’s best interests and if you can agree, the court will make an order setting out the details.
When the court will make an order
If you cannot agree at the first hearing, the judge will set a timetable for what happens next, which may include asking you both to go to mediation. If mediation fails, the judge will hold a final hearing where they will hear from both parents, and the Cafcass officer if necessary, and make a decision on what is best for the child.
The judge will always put the welfare of the child first, and they must consider:
the child’s wishes and feelings;
their physical, emotional, and educational needs;
the effect that any change in circumstances may have on them;
their age, gender, background and any relevant characteristics;
any harm suffered or possible risk of harm; and
how capable each of the parents is of meeting the child’s needs.
The judge will only make an order if doing so would be better for the child than making no order at all. If an order is made, it will usually last until the child is sixteen.
Enforcing an order
You can ask the court to enforce a specific issue order if your ex-partner is not following it, and the court has various powers that it can use. For example, it can order the surrender of a child’s passport where there are concerns that they may be removed from the country. The court can also require your ex-partner to compensate you financially where you have lost money because of their failure to comply. For example, if you missed a holiday because they did not follow the order.
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.
F v F - Acted for a German husband in a complex financial remedy matter. He decided to instruct IMD Solicitors after he had lost trust in his previously instructed solicitors and feared that he would not achieve a favourable outcome from the proceedings. The relevant assets were spread across the globe with some located in the UK (including a multi-million pound business), Gibraltar, Spain, Dubai, and Poland. The overall value of assets exceeded £24 million. The husband had been cut off from the matrimonial assets and excluded from control of the business that had been established by his family. The case involved the instruction of numerous experts, for business valuations, Capital Gains Tax reports, and opinions on the enforcement of orders in foreign jurisdictions, and dealing with several applications, including applications for orders to freeze assets, prevent the disposition of assets, for the joinder of parties, and to litigate conduct issues. The final result exceeded the client’s expectations.
L v L - We were instructed by a mother in a complex international children matter. She was required by orders of the UK courts to return the child to the UK from Poland. She had travelled with the child to Poland but, following unsuccessful application to extend her stay there in August 2017, she decided not to return to the UK because the child disclosed sexual abuse by a member of the paternal family and the father. In September 2018, the Polish court dismissed the father’s Hague Convention application for the child's return on the basis of Article 13(b), a decision which the father appealed. In March 2019, the father applied to the UK High Court for an order for the child’s return pursuant to the procedure set out in Article 11(6) – (8) of the Brussels IIA Regulation. Despite the father's unsuccessful Hague Convention application in Poland, the UK court ordered the return of the child. Article 11 does not allow the court of the returning country much discretion. After all of this, the mother instructed IMD Solicitors to apply to discharge the orders of the UK Court for the return of the child. Even in the face of the fact that most applications to discharge such return orders fail, we succeeded. We are currently awaiting a decision in the UK courts on a further application for the transfer of jurisdiction to the Polish courts where the mother resides with the child.
G v P - We represent a Spanish mother in respect of an urgent application for a Child Arrangements Order and Specific Issue Order in the UK seeking the relocation of the child to Spain. This was after the return of the child to the UK under Hague Convection proceedings which this mother lost in Spain.
She was asking for an order for the relocation of the child back to Spain and an urgent interim Child Arrangements Order to allow her to see the child pending the final outcome of the UK proceedings. IMD successfully argued that, regardless of the return of the child to the UK under the Hague Convention, the mother should be allowed unsupervised overnight contact with the child. We were delighted to be able to secure her contact with the child for Christmas and she said that it was the best Christmas gift she could have wished for. The outcome of the application for the relocation is pending.
S v V - We currently represent the father in Child Arrangements Order proceedings issued by the mother in relation to variation of a UK order made in the face of numerous other international proceedings. He is an Italian National who has been living in France for the last 20 years and the mother is a Lithuanian national. The child is now 11 years old and proceedings concerning the child have been ongoing in various jurisdictions for the majority of the child`s life. Contested divorce proceedings including child arrangements took place in Monaco. The French Court and authorities were also involved, and various proceedings had been ongoing between parties since 2013 in France and Monaco.
The parties’ divorce was pronounced in Monaco. Thereafter, in December 2020, the mother submitted an application to relocate to England with the child, and the relocation took place in June 2021. Upon relocation, the she lodged a child arrangement order application, seeking to register a judgment made in Monaco and to vary the same in respect of the contact arrangements between the father and the child. The father seeks for the child’s return to Monaco.
Due to the parties’ mutual allegations and the associated international elements, various authorities and courts that have been involved in the case, the local authority has become involved with the family and a guardian has been instructed to represent the child in the UK proceedings. At present, these proceedings in England are ongoing and the outcome of the professional reports regarding the family are awaited.
P v P - We have acted for the Respondent Husband in relation to the financial remedy proceedings in the UK. The parties had various assets in the UK and Romania consisting mainly of the portfolio of properties but conduct issues were raised by the Wife due to a business of the Husband over which she had lost control and her allegations of dissipation of assets. The value of assets excluding the business were in a region of £3 million.
K v K - We act in financial remedy proceedings for a wife who is a Polish national. The matter's complexity mainly comes from a dispute between the parties around land in Poland. Its value was initially in dispute but was then assessed by a joint expert to be in the region of half a million pounds. The total assets in this case are estimated to be worth over £1 million. The land in Poland is a subject to contract with a third party and is being leased as a photovoltaic (solar) farm. The division of the land to achieve an equal share of the assets is complicated due to the contract in place and plans for the future use of the land. Currently the parties are awaiting a final hearing but efforts are being made to reach a settlement with the aid of alternative dispute resolution and in order to save the parties money and avoid further delays.
R v O - We acted pro bono and worked together with a law firm in Poland to ensure that the Costa Rican Mother regains access to her child. The Mother's only child was abducted from the UK in 2014. The Mother was successful with the abduction case and the UK family courts ordered the return of the child. The orders were recognised in Poland but unfortunately due to various issues with the Mother's immigration status and court's delays in Poland, the orders were never enforced. The Mother was facing removal from the UK and prospects of never seeing her child again. We have corresponded with various courts in Poland dealing with international abduction matters and we decided that an application for contact should be issued rather than any proceedings for further enforcement of the orders, as the Mother had not seen the child for around 7 years. At the same we secured the Mother's stay in the UK making successful outside of immigration rules application to extend her stay. We now receive regular photos from the Mother with her daughter, as face to face contact is taking place. We helped to secure an order of the Polish courts for the Mother to see the child regularly in person, whilst when she instructed us she was facing a prospect of never seeing her child again and being deported to Costa Rica.
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