If you and your ex-partner agree on all aspects of your children’s lives, including where they are to live and the amount of time they are to spend with the non-resident parent, the short answer to this question is you probably do not need legal advice.
However, if you are a father, it is important to find out whether you have parental responsibility. Parental responsibility is defined in section 3(1) Children Act 1989 as being:
“All the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.
In practical terms, when certain important decisions about the child’s upbringing need to be made, all those with parental responsibility for the child are allowed to have a say in that decision. This includes but it is not limited to consenting to taking a child abroad for holidays or extended stays, deciding the child’s education and where they go to school, consenting to a medical operation or certain treatment and deciding what religion a child will be brought up to practice. Mothers automatically have parental responsibility as do fathers who were married to the mother. Parental responsibility is not lost if the mother and father get divorced. Unmarried fathers do not automatically have parental responsibility but they can obtain parental responsibility by:
• having his name registered or re-registered on the birth certificate if his name is not already on the birth certificate as the father;
• entering into a parental responsibility agreement with the mother;
• obtaining a parental responsibility order from the family courts;
• having obtained a residence order prior to 22 April 2014;
• being named on a child arrangements order as a person with whom the relevant child is to live.
If you do not have parental responsibility and you wish to continue to be involved in your child’s life, you should take legal advice to help you to obtain parental responsibility.
Parenting agreements
If you and your ex-partner do not agree on issues relating to the children, it is important to get legal advice early on so that you can be informed about your rights and how to achieve the best possible outcome for you and your children as quickly as possible. It is also helpful to get the assistance of a solicitor if you and your ex-partner are not on good terms. A solicitor can try to come to an agreement on your behalf by writing to your ex-partner setting out your proposals. If an agreement is reached this way, a solicitor can prepare a parenting agreement, which is sometimes referred to as a parenting plan. It is a written agreement between parents covering practical issues regarding the children such as living arrangements and when
the children see the non-resident parent. Parenting agreements are not legally binding documents. However, they are helpful as they set out the arrangements clearly if they are prepared well. The general idea is that if arrangements are set out in black and white then they are less likely to break down and lead to disagreements. If the arrangements do break down and a court application needs to be made later on, a parenting agreement can also be a helpful way to clearly evidence you and your ex-partner’s intentions at that time.
Mediation
Another way to try to come to an agreement with your ex-partner might be mediation. Mediation is when separated parents try to agree on the future arrangement of the children with the assistance of a neutral and trained third party. Often, a mediator will also have a legal background. Mediation is voluntary and so both parties need to be willing to participate for it to work. If you are not comfortable sitting with your ex-partner, many mediators offer “shuttle mediation”, whereby you and your ex- partner will be in separate rooms. A mediator will take your proposals first then attend on your ex-partner in another room with your proposals in order to try to reach an agreement. If you are able to reach an agreement during mediation, a mediator can draw up your agreement in a document called a “memorandum of understanding”. You should seek legal advice on this document before signing and agreeing to any final version. What is agreed 58 and discussed during mediation is strictly confidential and will not be allowed to be placed before the court if court proceedings occur at a later stage. However, a solicitor can prepare a parenting agreement based on the memorandum of understanding. This parenting agreement can be disclosed to a court at a later stage if necessary.
There will be instances when mediation is not appropriate, for example if your matter is very urgent or if you are a victim of domestic abuse. Otherwise, before making an application to the court, you must first contact a mediator and arrange for a mediation, information and assessment meeting, commonly known as a “MIAM”. You are required to attend this meeting to show that you have at least attempted to resolve the matter without going to court.
Before trying to reach an agreement whether through solicitors, in person or through mediation, it is important to approach the issues in a child focused way and be guided by what is in the children’s best interests. Your children’s welfare will also be the court’s first consideration, above what you or your ex-partner want, on any application made in relation to them. In general, it will be in a child’s best interests to spend time with both parents unless there are safeguarding issues whereby the child could be at risk of harm if they were to spend time with a parent. If you believe there are safeguarding issues, you should immediately seek legal advice.
Of course, there may be instances where you will not be able to reach an agreement with your ex-partner or trying to reach an agreement without the court’s assistance is not appropriate. If this is the case, you will need to make an application under section 8 of the Children Act 1989. Any court application should be a last resort as it is often expensive, time consuming and stressful. If you are thinking of applying to issue court proceedings, it is always better to get legal advice and representation as a solicitor will know the law and procedure. They will be best placed to prepare your application and represent you so as to achieve the best outcome.
Reaching agreement
At court, negotiations often take place before hearings outside the courtroom. Having legal representation can help to reach an early agreement between you and your ex-partner if possible. If an agreement is reached at court, it can be drafted into a consent order and the court can make it legally binding. It is crucial that this document is drafted clearly and well. Having a solicitor to draft such an order is extremely helpful as they will have the relevant drafting skills. An order drafted vaguely at court can lead to disagreements in the future – the matter may have to return to court to have issues clarified and the order re- drafted, all of which will incur further expense.
You may find the following articles useful ‘Preparing For A MIAM’ and ‘Splitting Up
Yanoulla Kakoulli is a contributor to the ‘Separating With Children 101’ 3rd edition, (Bath Publishing, 2023)
