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Family matters - Court should be the last option

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This first appeared in the Wigan Observer on October 11th 2014

Q: My partner and I have recently separated and we are struggling to agree on anything to do with our child’s care. Is there anything I can do that will allow me to have more of an input in important decisions?

A: In the UK, one in three children will experience their parents separate before their 16th birthday. Although some families manage to work together, others find it hard to agree on important decisions.

In the “heat of battle” that relationships can too often sadly descend it is understandable perhaps if parents have difficulty in separating their own needs from the needs of their children. Once good will and pragmatism go out of the window, it can be hard trying to put aside emotions and focusing what’s best in respect to a child’s best interests. When angry or upset it can be hard to see what is for the best but considering how your decision might impact on your child rather than you is a good place to start.

Since 1st December 2003 most parents, other than unmarried fathers who have not signed the birth certificate, have a legally defined responsibility to make important decisions about the care and wellbeing of their child. This duty, called Parental Responsibility or PR, includes but is not limited to making essential every-day decisions about matters you may not have thought of, such as what food a child should eat or clothing it should wear, to more complex matters such as education, where a child should live or what is often one of the most contentious issues the Family Court considers, whether and to what extent a child should receive medical treatment.

In reality, most parents who are living together share this responsibility on a daily basis without having made an active decision to do so. You don’t need a piece of paper from a court authorising you or another how to work together.

There is a principle of minimum intervention enshrined in the Children Act 1989 whereby a court “shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all” when determining any application in respect to a child by a parent in the event agreement cannot be reached.

This means great emphasis is placed on parents trying to agree without the need of applying to court when a disagreement transpires, even more so since the Child Arrangements Programme (CAP) came into force on 22nd April 2014 which promotes the benefits of out of court Alternate Dispute Resolution and Mediation as a means of reaching lasting and mutually beneficial arrangements for children without the financial or emotional costs of court proceedings.

The concept of Parental Responsibility is often difficult to grasp (for lawyers and non-lawyers alike!) and a parent’s ability to exercise PR, with or without the input of the other, can unwittingly lead to disagreements when most other arrangements are settled, such as agreeing where a child will live and how and when it shall spend time with each other, but being unable to agree where a child shall go to school.

Who makes the decision if 2 parents can’t agree? What is important is to ensure that parents don’t overlook the “rights” of their child when focusing on their own, in often misunderstanding the intention and benefits conferred upon them by having Parental Responsibility.

In trying to resolve a disagreement it’s important to try and be open and honest with each other, and that you both know each others feelings and future plans from the start. Trying to see the issues and decisions to be made from the other parent’s point of view can be the hardest thing to do but may make you understood the other’s standpoint and aid agreement. If you understand the concerns of your ex-partner, you may see your choices in a different light. Preparing a Parenting Plan might help?

If you can’t agree then court should be the last option. There might be circumstances in which the welfare of a child requires a court to make urgent or protective orders but in most applications to court most parents find themselves agreeing to some extent in the end.

The CAP now obliges parents to seek mediation prior to making an application to court. Mediation allows both parents to discuss their issues with a neutral, trained professional who will help them come to a joint conclusion that suits both parties involved. It is important to consider doing this in conjunction with obtaining some independent legal advice from an experienced family lawyer, to be sure of the impact of any agreement reached.

Children often want simple things. Foremost they want their parents to “be happy”. By working together even after separation your child will see this and it will help them to maintain a close relationship with both parents and provide the assurance and stability vital to a child’s upbringing.

Further information http://www.justice.gov.uk/downloads/family-justice-reform/pd-12b-cap.pdf