childrenlaw Archives - Stephanie Dew Law

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Apply for a Child Arrangement Order without a lawyer – in England and Wales

This is a really tricky topic to briefly cover in a post like this as cases vary so much and the issues are often complex. It has however also been the issue most followers have asked me to cover so I’ll do my best. I’ve put links to helpful resources at the bottom which you should check out if you want to pursue this further.

Whilst ideally everyone would be legally represented when applying for an order in relation to their children, many are unable to afford legal representation and are not eligible for legal aid.

Legal aid is still available in family cases in very limited circumstances you can find out more here:

https://www.gov.uk/legal-aid

If you aren’t eligible for legal aid and worried about legal fees you may want to explore less traditional legal representation. Some solicitors offer “pay as you go” schemes, they don’t go on the court record as formally representing you but you can have one off meetings where the can advise you and they can assist you prepare key documents.

You can also obtain legal representation for just the hearings, doing the preparation work yourself. Some solicitors provide this service and barristers do this via “direct access”.

The court does not require you to have a lawyer, you can make an application on your own and the family court is used to this as more and more people are appearing unrepresented.

The process can be daunting and you need to be prepared to put in the work to prepare your case. Reading up on relevant law and procedure will help you prepare a coherent case. You also need to be able to look at matters objectively, this can be the most difficult aspect as it is inevitably such an emotional matter and the support of a sensible and honest friend or family member can be invaluable to help you take a step back and review things.

Mediaton (MIAM)

Before you can make an application both parties are required to have attempted mediation in order to resolve the issue. There are limited exemptions to this requirement such as cases where there is domestic abuse. Many parents feel that mediation is just a hoop to jump through however I disagree, it is a really important first step. If you are able to resolve your dispute through mediation and avoid going to court you will save your child, yourself and family a lot of stress and time. Court proceedings are slow, difficult and highly emotional for all involved. It is always worth attempting mediation where possible. Even if it is not successful, it may assist in narrowing the issues in dispute or assist in reaching a short-term agreement until the court makes an order. Even if the other party says they will not attend, unless an exemption applies you still need to make the effort alone to engage with mediation as the court will require evidence that it has been attempted by way of a signed form from the mediator.

There is more information about mediation and how to find a mediator here:

https://www.familymediationcouncil.org.uk/family-mediation/

If mediation is unsuccessful or you are exempt it is at this stage you can make an application to the court for an order.

Application to the Court

What orders are available from the court?

1.Child Arrangements Order: This can be a live with and/or spend time with order. (These used to be referred to as residence and contact orders.

2. Specific Issue Order.

3. Prohibited Steps Order.

If you disagree with the other parent about where your child lives and/or how much time they spend with each parent you may wish to apply for a child arrangements order. If you cannot agree on a specific issue such as education or medical treatment you may seek to apply for a specific issue order. If you want to prevent the other parent from doing something such as removing the child from the jurisdiction you may seek to apply for a prohibited steps order.

How to make an application to the Court.

An application is made on Form C100 and an additional Form C1A can be completed if there is a risk of harm. If you want to keep your address and telephone number private from the other party you can submit an additional form C8.

https://helpwithchildarrangements.service.justice.gov.uk/going-to-court

https://www.gov.uk/looking-after-children-divorce/apply-for-court-order

You can apply online or via a paper application (if you apply online the risk of harm application and confidential contact details will automatically be incorporated into the application if relevant.)

My personal preference is the online application, you can come back to it later so can complete it over a few days. It is harder to go wrong and miss key information that is required so it is less likely you will make an error that will result in your application being returned. In addition the applications are processed more quickly than the paper versions. If you application is very urgent (requires a hearing within the next 3 days) call your nearest family court and find out how they would like you to get your application to them. Try and get a specific contact there who you can speak to to ensure the application has been received and processed as urgent. Local procedures vary so it’s worth checking with your local court their own procedures from very urgent matters.

Completing the application

Before you start the application make sure you have key details ready as it can be frustrating and off-putting looking for details as you go along. You need basic information about all involved in the case, yourself and the other party or parties (this is usually the other parent or anyone with parental responsibility) including their date of birth, place of birth, address (for the last 5 years), email and contact number. You will need the child’s full name, date of birth and details of any social services involvement or any other linked proceedings. If any of the information is unavailable to you, don’t panic, just complete the form as best you can. Contact details are needed so that the court and other professionals can get in touch with all involved about the case so do your best to make sure accurate up to date information is included.

It is really helpful to prepare a chronology and history document for yourself to refer to as the proceedings progress. This is not something you would share with anyone else, rather it is your working document where you can keep track of key dates and information in one place and refer to it and update it as you go along. It will also be useful if you later have to prepare a statement.

There isn’t much room on the form to set out the entire background to the case, the application is not meant to be a full statement or history of the case, rather a summary to identify key issues. It can be tricky to be concise about what has happened and what you seek and it may take you a few attempts to prepare something which you will feel is appropriate. Ultimately any decision the court makes in the case will be based on what is in the child’s best interest (what they think is best for the child). Summarise the dispute briefly and any key dates or events.

There is a court fee payable of £232, this is a one-off fee to lodge the application and issue the proceedings. You don’t have to pay for court time etc as the case progresses no matter how long the proceedings take. You may have to pay a further fee if a further application is required within your proceedings for something that doesn’t fall within your initial application, if this happens the court will let you know.

There is help available to pay the fee for those on low income, find out more here:

https://www.gov.uk/get-help-with-court-fees

What happens next?

If your application is time sensitive or urgent, I strongly recommend you follow it up with a call to the family court to ensure it is swiftly processed. The courts are overloaded and applications can get lost in the system to it is worth confirming timescales etc for your own peace of mind.

Once the application has been processed you will receive some formal documents from the court, this will include a sealed (formally marked) copy of your application, the hearing date and any directions (instructions) from the court about what must be done next and when. Read them carefully, they are legal documents and missing a key date can cause significant problems. This is when you really need to get organised, get a diary for the key dates, a folder for the important documents. Make a note of the key dates and your case number as you will likely need to refer to these frequently.

The other party will also receive a copy of the documents, if you haven’t told them about your application they will find out when the paperwork arrives from the court.

Cafcass

Prior to the first hearing you and the other party will be contacted by someone from the Children and Family Court Advisory Service (Cafcass). They will carry out safeguarding checks (checks with the police and social services) to see if there are any known safety or welfare issues. They will usually speak to you and the other party over the telephone to find out about your application and to identify any welfare concerns. Shortly before the hearing they will “file” that is send the court and the parties a safeguarding letter which is a short report on their enquiries and the outcome of the safeguarding checks and any initial recommendations to the court.

First Hearing – FHDRA (First Hearing Dispute Resolution Appointment)

If no safeguarding or welfare concerns have been identified by Cafcass, efforts will be made at the first hearing to encourage you and the other parent to reach an agreement. If an agreement can be reached at court this can bring an end to the proceedings and the agreement can be recorded in a legal document called a consent order.

If an agreement cannot be reached or if there are welfare or safety concerns the court may:

Order the parties to take part in a Separated Parents Information Programme (SPIP)
Refer the parties to a mediation assessment or ask Cafcass to help the parties reach an agreement
Order a finding of fact hearing if disputed allegations have been made that might affect the outcome of the court process such as allegations of domestic abuse
Where there are concerns about domestic abuse, or domestic abuse is found by the court to have taken place, the court can order a party to take part in a domestic abuse perpetrator programme
Ask Cafcass to carry out more detailed work with your family and to write a report about the child’s welfare known as a section 7 report.

Helpful resources:

If you intend on issuing proceedings without legal advice, please do some homework first so that you can prepare your case properly. I’ve put together a list or resources below which you may find helpful:

Government website which sets out details of children applications, fees, how to complete the form etc. You can complete your application online here

https://www.gov.uk/government/publications/form-c100-application-under-the-children-act-1989-for-a-child-arrangements-prohibited-steps-specific-issue-section-8-order-or-to-vary-or-discharge

2. Cafcass – Divorce and separation for parents

https://www.cafcass.gov.uk/grown-ups/parents-and-carers/divorce-and-separation/

3. Child law advice – contains a wealth of information about proceedings and what to expect and do at each stage.

http://childlawadvice.org.uk

4. Resolution

http://resolution.org.uk

5. Government legal aid website

https://www.gov.uk/legal-aid

6. Family mediation council

https://www.familymediationcouncil.org.uk/family-mediation/

7. Family Procedure Rules

https://www.justice.gov.uk/courts/procedure-rules/family/rules_pd_menu

8. The Children Act 1989

https://www.legislation.gov.uk/ukpga/1989/41/contents

Choosing the right solicitor for your matter is crucial and we therefore offer a free initial consultation so that you can find out more about our services and decide whether we are the right fit for you.

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Can I get divorced without my marriage certificate?

To get a divorce in England and Wales, you must provide the court with a copy of your original marriage certificate.

If you have lost it, or your ex-partner won’t give it to you this can be a problem to getting the divorce process started. If you haven’t got your original marriage certificate, you will need to get a certified copy marriage certificate..

This is relatively straight forward, you can do this by applying to the General Register Office.

Details on how to apply can be found here:

https://www.gov.uk/order-copy-birth-death-marriage-certificate

There is a fee of £14 for the service and you can pay extra for a next day option.

If you were married outside of England and Wales, you will need to contact the relevant authorities in that country to obtain a copy of your marriage certificate. The country’s embassy is a good place to start, they should be able to direct you to the right agency.

If your marriage certificate is not in English, you will need to provide the court with a certified English translation when making the divorce application.

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Can My Ex-Partner Stop Me From Seeing My Child?

It is so common to see children being used as weapons when relationships breakdown with one parent preventing the other from seeing a child. I have worked with many parents who have been stopped from seeing a child for extend periods of time by an ex partner, sometimes due to genuine concerns and on other occasions due to malicious and false allegations.

What should I do if I am prevented from seeing my child?

If there is no court order in place setting out the child arrangements, you should attempt the following:

Discuss the problem with your ex-partner and try and resolve it without confrontation. Is there a mutual friend or family member that could assist? (If there is a non-molestation order in place this will not be appropriate).
Consult a family solicitor who can advise you on next steps and write to your ex-partner to set out your concerns and proposals;
Refer the matter to a mediator who could assist resolving the situation with your ex-partner;
Apply to the court for a child arrangement order. (More on this below).

If there is already a court order in place an application can be made to the court to enforce it.

When can contact with my child be stopped?

Legally your ex partner cannot stop you from seeing your child unless access will be of detriment to your child’s welfare, safety and welfare concerns include things like criminal activity, domestic abuse, drug/alcohol misuse or other inappropriate behaviour that puts your child at risk.

However, until a court order is in place to determine what the child arrangements are for the children it is up to parents to agree the arrangements. Where child arrangements cannot be agreed, particularly where children are not able to see a parent at all, an application should be made to the Court without delay.

If a parent is stopping contact with you because of alleged welfare concerns they can seek a child arrangement order which confirms the child lives with them and doesn’t have contact with you. An urgent application can be made to the court without you being there to respond if the parent applying believes there is an immediate danger to the child. This is known as a “without notice order”. The parent making allegations will need to provide evidence to the court to support their case, this may include information from the police, social services, medical professionals or witness statements from third parties.

If you find yourself subject to a “without notice” hearing, do not panic, there will always be a second hearing in the court a few days later which you can attend and defend the allegations made in your absence and present your own views to the court.

A parent who stops contact may not make an application to the court. If that is the case,

you should make an application for a child arrangement order to have contact with your child straight away as it may take some time for the court to hear your case and any delay means further time you may not be able to see your child.

Do I have a right to see my child?

It is important to bear in mind that a parent doesn’t actually have a “right” to see their child. Parental responsibility gives you legal rights and responsibilities but no right to contact. The law in relation to child arrangements is entirely based on the child’s welfare and therefore decisions the court makes about child arrangements are based on the benefit to the child from seeing you, not because it will improve your quality of life as a parent. However, there is a legal presumption that the continued involved of both parents in a child’s life will best promote that child’s welfare, therefore in the absence of any safeguarding concerns, the court actively encourages a relationship between a child and both of their parents.

Can I make an application for an order if I don’t have parental responsibility?

As a parent, even if you don’t have parental responsibility you can still apply to the court for a child arrangement order. The court should consider whether it is appropriate to make a parental responsibility order when dealing with the other orders.

What will the court consider?

When making decisions in relation to your child and the appropriate arrangements the welfare of your child is the only thing the court will consider. It may be necessary in a case where allegations regarding the child’s safety and welfare have been made for the court to consider these fully before it can move on to the welfare questions. For example, if an allegation has been made that contact is not safe to take place because it is alleged that you have assaulted your ex-partner or child, the court will need to make a determination as to whether this happened, that is make a “finding” in relation to these contested issues before it can decide if and how contact can take place. Sometimes it is necessary for a “fact finding” hearing to take place during the first stage of the case and it is those “findings” which will determine how the court will make future decisions about your child.

It is important to note that legal proceedings are likely to take some time and involve a number of hearings, so you need to be prepared for a number of court attendances during the process.

What the court must take into account when considering your child’s welfare is set out in the “welfare checklist” and includes the following:

The wishes and feelings of the child concerned (in light of their age and understanding);
The child’s physical, emotional and educational needs;
The effect a change of circumstances may have upon them;
Age, sex, background and any characteristics which the court considers relevant;
Any harm that the child has suffered or is at risk of suffering;
How capable the parents are of meeting the child’s needs.

What sort of order can the court make?

The child arrangements contained in the order vary in each case and the requirements will be set out specifically for your family. It should include where your child lives and how often they spend time with the other parent. (These used to be called residence and contact orders). In addition the child arrangement order, can include the following:

arrangements for indirect contact which would include things like telephone calls or video calls;
specific details such as where, when and how handover take place;
an agreement not to speak badly of each other in front of the children;
arrangements for holidays and trips abroad;
who is responsible for keeping and renewing the child’s passport;
how the parents are to contact each other in an emergency situation;
how the parents will keep each other informed and updated in relation to the child.

What is included in the order really depends on your individual circumstances and ability to communicate with each other. My preference is to have the least draconian order as possible in order to allow flexibility and variation when needed, however this is not suitable in particularly acrimonious cases. Where there is a history of really difficulties a more prescriptive order can assist with keeping the arrangements on track.

If you found this blog helpful please let me know.

If you have any family law issues you would like me to address in a blog please feel free to contact me.

Who can register a baby’s birth?

Following the birth of a baby, there is a lot of admin involved!

Whilst your main focus is caring for this new little person, you are legally required to register your baby’s birth within 42 days of the birth at the local registry office. The requirements for registering a birth and how the parents acquire parental responsibility differs depending on the status of their relationship and their sex, so I have gone into this in some detail below.

Parental responsibility is really important. Whilst the birth mother automatically has parental responsibility from the birth, it is the second parent who must ensure that they are properly registered.If you want to be recognised as your child’s parent it is crucial you ensure that you acquire parental responsibility and if you have any doubts get legal advice so that this is done properly.

Same-sex female couples

Female couples can include both their names on a child’s birth certificate when registering the birth and can therefore both have parental responsibility.

Same-sex females who are married or in a civil partnership

Either parent can register the birth on their own if both of the following are true:

the mother has a child by donor insemination or fertility treatment; and
she was married or in a civil partnership at the time of the treatment.

They will both have parental responsibility in this scenario.

Same-sex females who are unmarried or non-civil partner parents

When a mother is not married or in a civil partnership, her partner can be seen as the child’s second parent if both women:

are treated together in the UK by a licensed clinic; and
have made a “parenthood agreement”

However, for both parents’ details to be recorded on the birth certificate they must do one of the following:

register the birth jointly; or
complete a “statutory declaration of acknowledgement of parentage form” and one parent takes the signed form when she registers the birth; or
get a court order giving the second female parent parental responsibility and one parent shows that order when she registers the birth.

There is a link to the “statutory declaration of acknowledgement of parentage form” below.

Same-sex male couples

Male couples must get a parental order from the court before they can be registered as parents.

There is a link to a “parental order” form below.

Opposite-sex couples

Opposite-sex parents who are married or in a civil partnership

Either parent can register the birth if they were married to each other in a civil partnership together at the time of the birth. Opposite-sex couples and those who are married or in a civil partnership automatically have parental responsibility when the child is born, they don’t need to be on the birth certificate to obtain this.

Opposite-sex parents who are not married or in a civil partnership

The details of both parents can be included on the birth certificate if:

they sign the birth register together (they will both need to be present); or
one parent completes a statutory declaration of parentage form and the other takes the signed form to register the birth; or
one parent goes to register the birth with a court order giving the father parental responsibility.

It is important that both parents attend the registration, if the mother attends alone the father’s details cannot be registered. It may however be possible to add them on later by registering the birth.

Helpful links:

Statutory declaration of acknowledgement of parentage form:

https://www.gov.uk/government/publications/statutory-declaration-of-acknowledgement-of-parentage-form

Application to re-register a birth and add the father’s details:

https://www.gov.uk/government/publications/application-to-re-register-a-childs-birth-and-add-the-natural-fathers-details

Details on how to get a parental order:

https://www.gov.uk/legal-rights-when-using-surrogates-and-donors/become-the-childs-legal-parent

Follow me for more family law advice and DM me if there are any particular topics you would like me to cover and I will do my best to cover them.

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When should I speak to a solicitor about my divorce.

Many people put off speaking to a solicitor because they are worried about the potential cost. Conversely, by speaking to a solicitor at the outset you are more likely to save costs in the long run as well as a lot of stress. The earlier you obtain legal advice about your separation the better. Practical advice about the divorce process and the likely outcomes for you will help you navigate the process with clarity and understanding. In my experience, couples who have both received early legal advice are more likely to reach a settlement and avoid the delay and costs excessive litigation can bring.

It is never too early to speak to a solicitor if you think your relationship is coming to an end. Burying your head in the sand will achieve nothing, facing up to the situation from an informed position will empower you to move forward and make the overall process less stressful. I often speak to people before they have made a definite decision about their relationship, but who want to explore their options and what their reality may look like of they proceed with a divorce.

Your partner or ex-partner need not know you have obtained legal advice if you decide not to proceed with the situation. The interactions you have with a lawyer will be confidential and your lawyer will be used to dealing with clients very discretely.

Just because you speak to a solicitor does not mean your case will end up in court. A good solicitor will seek to achieve the best outcome for you without litigation if possible. They will be able to support you through the mediation process and work with you to achieve an agreed outcome with your ex-partner.

Children and separated parents, family law, parenting, family court, contact order, child arrangement order, residence order

What is Parental Responsiblity?

Parental responsibility is really important. It is the legal rights and responsibilities a parent has for a child and what gives legal recognition to you being a parent.

If you have parental responsibility you will be responsible for:

Providing a home for your child;
Protecting and maintaining your child (although parents without parental responsiblity also have a duty to financially support thier child)
Choosing and providing for your child’s education;
Making decision in relation to your child’s medical treatment;
Naming and agreeing to any change of name;
Looking after your child’s property.

Exercising parental responsibility, that is making decisions about your child should be done in agreement with all others with parental responsibility. This is usually straightforward if you are in a relationship with the other parent, however for separated parents it can be challenging.

Parental responsibility and separated parents

Having parental responsibility for a child you do not live with, does not automatically mean you have a right to spend time with them. However, the parent with who the child lives must consult others with parental responsibility when making major decisions about your child.

You do not need to be consulted about each day to day decision, however when it comes to important matters such as schooling or moving abroad, both parents should reach an agreement. It is sensible to record this in writing.

If an agreement can’t be reached you can apply to the court for a specific issue order or a prohibited steps order.

You can find out more about this and get the relevant court forms here:

https://www.gov.uk/government/publications/form-c100-application-under-the-children-act-1989-for-a-child-arrangements-prohibited-steps-specific-issue-section-8-order-or-to-vary-or-discharge

Can we make a joint application for divorce?

Yes, recent changes to the law mean that for the first time it is possible for a couple to apply jointly for a divorce. Whilst it is still possible to apply individually, a joint application is likely to be the best option in most situations.

Making a joint decision to apply for a divorce can be seen as a positive step forward when a relationship has broken down. Rather than one person taking the lead and the other perhaps feeling ambushed or shocked, a joint application ensures that both parties are well aware of the divorce from the outset and will feel fully involved and are more likely to engage with the process.

If you can start the divorce process in a (relatively) amicable manner, when you are both emotionally ready to proceed, it is much more likely that you will then be able to deal with resolving your finances and the arrangements for your children in a smoother manner.

When applying jointly for a divorce application, one person will take the lead – Applicant 1, the other will be Applicant 2. If at some point during the process your relationship deteriorates significantly or one person is not engaging with the process, it is possible to switch to an individual divorce application so that progress can be made.

I’ve set out in more detail the process for applying jointly in another blog.

family law, parenting, family court, contact order, child arrangement order, residence order

New legislation raises minimum age to marry to 18 in England and Wales

Previously people (children) could get married at 16 to 17 as long as they had parental consent.

This new law applies to regulated marriages as well as unregulated ceremonies that are not registered with the local council.

The penalty for adults who facilitate the marriage of an under 18 includes up to 7 years imprisonment and a fine. The penalties do not apply to any children involved.

Significantly the rules are to apply to marriages abroad so will include adults who take children out of this country to facilitate a marriage.

The bill has sailed through Parliament with little opposition and will receive Royal Assent later this week.

The new legislation will not affect the validity of any marriages or civil partnerships that took place prior to the new law coming into force.

This change is not UK wide, in Northern Ireland and Scotland the minimum age for marriage remains at 16, in Northern Ireland you still need parental consent but in Scotland it is not required.