John Hooper & Co

A child, in England and Wales, is a person who is younger than 18 years of age.

The courts have jurisdiction to make Orders in respect of children (whether or not there are divorce proceedings).

In the vast majority of cases, the parents are able to agree the arrangements with regard to the children of the family, i.e.:-

Where the child is going to live;

When and for how long the child sees the other parent;

What school he/she is going to attend;

His or her religion, health concerns and the like.

In that event, there is no need for the courts to become involved with those arrangements.

It is only where there is a dispute between the husband and wife about such matters, which cannot be resolved by negotiation, that the courts need to get involved.

This will usually only happen after the parties and the children have been interviewed by a CAFCASS Officer and after extensive attempts by both parties, with the help of their legal advisors, to resolve the matter by way of negotiation and/or mediation.

Therefore, the prospect of such a case getting to court, is considerably less than before.

Further, Legal Aid cutbacks have also taken their toll.

Nonetheless, if the case goes to court, both parties will have the opportunity to give evidence and to put forward their respective cases.

The presiding Judge will then make a decision which will be binding upon the parties.

If either party is unhappy with that decision, he or she can apply for permission to have the case heard by a more senior Judge. However, such permission is not easily obtained from the Court.

It is interesting that the majority of the reported Children cases are Legal Aid cases. These cases were heard at a time when state funding was much more generous than it is now.

Section 8 of the Children Act 1989 sets out the Orders that can be obtained by one party against the other in respect of a child of the marriage.

In the past, the tendency to favour the mother when it came to such disputes such as residence (custody) and contact (access) was a common criticism.

Nowadays, the approach taken by the judiciary is more even and mindful of the rights of both parents.

The overriding principle for the court nonetheless is “what is in the best interests of the child?”

We also have cases involving children from international families.

These are cases where one parent seeks to remove the children from their country of residence to live permanently in another country.

In such cases, the court will hear evidence from both parties and again the overriding consideration will be “what is in the best interests of the child?”

Nowadays, there is much more emphasis upon the parents to try to resolve these types of dispute by agreement if at all possible. The cut and thrust of court room litigation frequently damages the prospect of effective communication and co-operation between the parents into the future.

There are skilled mediators who are available to assist with such problems.

Having said that, mediation is not a panacea.

Both parties need to retain independent legal advice with regard to such matters.

If mediation does not provide a sensible solution in respect of the dispute – either one or both parties have the right nonetheless to make an application to the court.

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