Caught in the middle of their parents’ relationship breakdown, it is important that the best interests and wishes of any children are considered. If parents are separating, they will need to agree the arrangements for where children will live and how often they will see the other parent.
‘It is better for all concerned if this can be agreed amicably’, explains Melissa Cunningham a family law specialist at IMD.
‘The courts do not usually interfere in arrangements for children, but if parents cannot agree one will need to apply to the court for a child arrangements order to determine what time the children should spend with each parent.’
Melissa Cunningham
Only
in very extreme cases might a child attend court and give evidence, for example
if a serious allegation has been raised against a parent’s behaviour towards a
child. Even then, any attendance at
court is rare.
Although
children do not usually have to go to court, it is important that their voice
is heard and the court will always consider the needs of children to be
paramount.
To
ensure that the court has the right information, it will notify an organisation
called CAFCASS that proceedings have been commenced. CAFCASS is an independent body, and its
caseworkers undertake investigations for the court and make recommendations as
to what arrangements are in the best interests of the children.
Initially,
CAFCASS will make enquiries of the police, the local authority and possibly the
children’s school regarding the safety of the children to understand if there
are any reasons as to why the children might not spend time with their parents.
At
this stage, the children’s views are not sought. As the case progresses,
CAFCASS might be asked to prepare a more detailed report for the court – this
might be if the initial report raises concerns about the possible safety of the
children, or allegations of violence have been raised by one parent against the
other. It might even be that in the case
of older children, the court feel that their wishes and feelings are
particularly relevant to the case.
To
prepare this report, the caseworker may speak to the children to understand
what they want to happen.
In
that case, CAFCASS will arrange with the parent with whom the children live to
meet with them – the length of the meeting will depend on the children. The meeting could be at home or at a neutral
venue (CAFCASS offices). The children
may be spoken to without a parent being present but that will always be
dependent on each child and their willingness to speak to CAFCASS.
The views of the children are something the court will take into
account, but it will depend on the age of the children. The views of older children are likely to be more
persuasive on the court than a young child, for example a child aged 13 is more
likely to be able to explain their views then a child of say four years old.
However, in all cases the court can make decisions which
override the views of children if the court feel that is in their best
interests.
Usually children do not need a solicitor. Where the disagreement between the parents is
particularly entrenched or complicated, the court may decide that the children
should be a part of the legal proceedings in their own right.
In those circumstances the court will appoint a guardian for the
children who will in turn instruct a solicitor who will represent the children
separately from the parents.
A guardian will be someone who works for CAFCASS, but their role
will be different to that of the caseworker who prepared the report for the
court. The guardian will meet with the
children more regularly and will represent them in court.
On rare occasions, a judge may meet privately with the children
to find out what they want the court to do. This does not mean that the judge
will agree with a child’s wishes and sometimes they must explain that they
cannot fulfil their wishes.
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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