It is a key principle of family law that, in most situations, a child’s best interests are served by maintaining a good, close and loving relationship with both sets of parents following a divorce or separation. Simply put, children of separated parents have a right to be able to spend time with both parents. It is important for the children that parents agree and support these arrangements. This ultimate guide aims to help you understand the scope of a parenting plan, why they can be helpful, how best for you to work together and, if all else should fail, what other options and help are available.
What are child arrangements?
They are the plans, schedules and commitments that parents agree to enable the children to spend time with both parents and, often, their extended family.
Think of a calendar year and all the events that a typical family may encounter. These should be captured in your child arrangements.
By agreeing everything in advance, you will lessen the chance of undue stress and parental conflict.
There is an example of parenting plan here.
What options do I have to deal with parenting issues?
When it comes to making child arrangements, parents do have a number of options that they can pursue:
Personal friend or other contact
- Do you have someone who you both trust to act impartially? A parent or religious leader for example.
- They would work with you but should not be telling you what to do!
- You could ask your solicitor to work with the solicitor of the other party to reach agreements
- This is where you will both be in the same room as your solicitors and it becomes a four-way negotiation
- You could ask an arbitrator, experienced in child arrangements, to become involved and they will make a legally binding decision.
- You could make a child arrangements application to the court and ask a judge to make the decisions.
How does mediation on parenting work?
After you have both had an initial meeting with the mediator (called a MIAM) you attend a joint mediation appointment or a shuttle mediation appointment. For a joint mediation appointment, you are in the same room; in a shuttle meeting, you are in different rooms. You can also mediate online from anywhere in the world. You can even ask for shuttle mediation online, where you are not on the same screen as the other party.
The mediator will agree the format of this meeting with you. Usually, parents follow one of two formats:
- To list the topics yourselves that you wish to cover
- To follow a structured parenting plan. The mediator will take you through our standard parenting plans, which can be added to as needed
The aim is that you discuss your options in mediation and reach agreement on what should be included in the parenting plan.
What is covered in a parenting plan?
The plan is flexible to cover anything that you want covered as parents.
The plan must work for both parents – if it doesn’t, there is little incentive for both parents to either agree to the plan or implement it faithfully.
A structured parenting plan will start with you outlining your objectives and hopes before moving into the detail.
Think of a calendar year and all the events in which your children participate or are involved. That is, generally speaking, what you need to cover in your parenting plan.
From where your children will sleep each night of the week, to how you will organise parent evenings at school. From what you want to happen on the birthdays of the children to how you communicate about the children. From matters of health to arrangements for holidays and travelling abroad.
On that last point, are you aware that anyone with parental responsibility needs to be asked for their permission before a child can be taken out of the country? More information on this can be found here: https://www.gov.uk/permission-take-child-abroad
Is child mediation legally binding?
No, it is not legally binding. However, if you wish to make an application to the court for a legally binding order, you must have attended an initial meeting (called a MIAM) with an accredited family mediator. Any parenting plan you agree through mediation, can be made legally binding through a consent order. Mediate UK offer these solicitor drafted orders for a fixed fee.
Can we make our child arrangements legally binding?
Yes. There are two ways that this can be achieved:
- Applying direct to the court for a child arrangements order
- Attending mediation and then applying for a consent order through court – in effect, this is a child arrangements order with the consent of both parents
Can my children have a say in the process?
Yes, although it will depend upon different scenarios and circumstances.
Child Arrangements Order
- If you apply direct to the court, they will most likely appoint CAFCASS (see this link https://www.cafcass.gov.uk)
- Depending upon the situation and ages of the children, the Cafcass Officer (a trained Social Worker) may speak directly to the children to get their views and input.
- You can follow the protocols of Child Inclusive Mediation (CIM).
How does child inclusive mediation work?
In a structured parenting plan, you will be asked if you wish to use CIM. In broad terms:
- It is encouraged that children over the age of 10 be told they have a right to have their wishes and feelings heard in this process
- Both parents must agree
- A CIM qualified mediator will write to and invite the children into mediation
- It is voluntary for the children; they do not have to participate
- It is confidential for the children; they agree what feedback is given to their parents
- Parents use the feedback to build the wishes and feelings of the children into their parenting plans and structures
- At no point will a child be asked to make a choice or a decision – choices and decisions must be made by the parents, but based on their child’s wishes
What other help is available?
There is a wealth of advice and information available to parents.
Kids come first
Child law advice
Separated parenting information programme
Child counselling at their school
- Speak to the teacher at school as they often have a counsellor available
- This setting can be a safe space that the children know and are comfortable with
Private counselling – for children or parents
Do I have to attend mediation to resolve parenting issues?
No. But do you want a third party telling you what your child arrangements will be or would you rather agree these arrangements between yourselves?
If you make an application to court, you will need to have had a MIAM for an accredited mediator to be able to sign the relevant certificate to enable your case to be heard.
Can police enforce a child arrangement order or parenting plan?
No. If the child is safe, then the police have no powers to remove a child from someone with parental responsibility. If a child arrangement order is in place but not being adhered to, you will need to take this matter back to court and ask the court to enforce it. Such matter falls under family law and is not enforceable by the police.
If a parenting plan is agreed in mediation, inherent in that agreement is that both parties will trust the other to keep to what has been agreed. If one parent unilaterally decides not to adhere to an agreed plan, it is highly likely the plan will then fail as the second parent is – at some future point – likely to do a tit-for-tat. You could return to mediation or then make an application to court for a child arrangement order.
Can I use mediation to change an existing court order?
Yes, and this is usually the first step to agreeing a change to an order. The agreed change you make in mediation cannot alter the existing court order, so that is always in the background and either party can revert to that at any time. To cover yourselves, you can then ask the court to make a new order, but by consent.
We cannot agree. How will mediation get us to agreement?
For you to be able to reach an agreement, you must both have a will and a desire to reach an agreement. In such circumstances, the mediator will try to find the key that unlocks a way forward.
The mediator will ask you to look at all the options that you have, they will help you explore possibilities of compromise and try to find a way to move you both forward. Mediation centres on negotiation and compromise and if those two facets are visible, there is every hope of an agreement.
However, a family mediator cannot impose an agreement on you or take decisions for you. They can instead share legal knowledge, suggest parenting plans and solutions that have worked for other clients in a similar circumstance and help you consider options that you may not have thought of.
At Mediate UK 90% of clients who go on to joint mediation are able to reach an agreement through mediation.
I want to take the children abroad on holiday but my ex disagrees. What are my options?
To start, here are some helpful links:
- This link will confirm the arrangements that need to be made in order to take a child abroad: https://www.gov.uk/permission-take-child-abroad
- This link explains The Hague Convention, and the importance of it where child abduction occurs: https://www.gov.uk/government/publications/international-parental-child-abduction/international-parental-child-abduction
- In order for anyone to take a child out of the UK, they need the permission of anyone with Parental Responsibility and this is covered here: https://www.gov.uk/parental-rights-responsibilities
If permission to travel is not given, you could seek legal advice on the next steps available to you, including an application to court under a Specific Issue Order. In order to submit such an application you will need to have considered mediation by way of a MIAM with an accredited family mediator. The court will make a decision, but will prefer you to agree between you as parents outside of court where possible.
Can I change my child’s surname?
In order to change the surname of your child, you need to have everyone’s permission who has parental responsibility. You need to carefully consider the reasons why you are wanting to make the change and the impact on the child. If you cannot agree between yourselves to change the name of your child, you can discuss this in mediation or apply to the courts for a Specific Issue Order.
I don’t want to go to mediation – why do I have to go to a MIAM?
The law requires you to attend a MIAM before your case can be heard at court, in most circumstances. There are some exemptions to this involving domestic abuse and urgency and the full list of exemptions can be found here. You will normally need to show proof of your exemption to the court. If the court considers mediation to be the best option for you both, then they can adjourn proceedings whilst you attempt mediation before returning to court. If you have good reasons for not doing mediation, but do not meet one of the 15 exemptions for a MIAM, then you can do a court MIAM. In such cases, the other party is not contacted, and you can apply direct to the court on a C100 Form.
My ex does not want to do mediation. What choices do I have?
Mediation is a voluntary process so neither party can be forced to undertake mediation against their will. By attending your MIAM you have met the minimum necessary requirements to submit an application to the court. If both you and the mediator agree, we can write to the other party inviting them to mediation. If the other party does not respond after two weeks, we send a final letter asking them to contact us within a week and if they do not, we can release the signed C100 form. This will allow you to show to the court that you have attempted to engage in mediation.
Alternatively, you could seek legal advice from a solicitor and ask them to begin proceedings. It is likely that they will reiterate the benefits of mediation.
Do I have to go to court for child custody?
Only if you cannot agree outside of court. Courts would rather you reached agreements on child custody in mediation with the other parent. Sadly, this is not always possible and sometimes a parent feels their only way forward is to make a court application.
If you are sent a court date, you should go to court on the date of the hearing. If you do not, an order can be made in your absence and if you then breach that order, you could, ultimately, go to jail. Not turning up to court without good reason, will not go down well with the judge. It shows that you do not have respect for the authority of the court and the judge could believe that you simply don’t care enough about the children in order to put your views across. The matter is unlikely to simply go away and a ‘head in the sand’ approach will likely lead to an order being made in your absence, that is legally binding and that you don’t agree with. It is a far more difficult process to overturn an existing court order.
Doesn’t the court usually order every other weekend to the dad?
There is no such thing as a standard child arrangement order. Each family, child and situation is different. Whilst alternate weekends allow the children quality time with both of their parents, the arrangements for during the school week, holidays and special occasions will vary for every family. Things get even more complicated when a parent works shifts or has a varied work pattern. Any order will need to reflect the circumstances of the family. In the vast majority of cases, it is well-recognised that the decisions on how to bring up children are better made by the parents, with compromise where required, rather than a court order being issued that you may not agree with, but are bound-by legally.
At the end of the day, the decisions on how to bring up you children are better made by the parents, with compromise where required, rather than having an order imposed on you that you may not agree with but are legally bound to.
What are the costs of mediation and a child arrangements order?
If you are eligible for legal aid, then mediation will not cost you anything. If you are eligible, and the other party is not eligible, then they will have their MIAM and initial first meeting for free as well. They just have to pay for any subsequent mediation session after that. You can check your eligibility for legal aid here. (Just click you have started the mediation process).
Unless you have been the victim of domestic abuse, there is no legal aid to help you at court, although you may be eligible for a court fee remission. The fee is currently £232 and you can see if you are eligible to have this reduced here:
Mediation through Mediate UK costs £120 per person per hour. The number of sessions is decided by you both, but an average would be 2 or 3 x 90-minute meetings. A solicitor to draft a child arrangements order by consent and liaise with the court for a child arrangement order is £499 per person (including VAT). You can find a list of all the costs by clicking here.
If you are represented by a solicitor at court it will be more expensive, with most family solicitor firms quoting upwards of £5,000 for your case. This will increase if more hearings are required.
The best people to agree the parenting arrangements for the children are the parents themselves. If you are unable to agree or need help in reaching a parenting plan, then the next step would be to try family mediation. Any agreement reached can then be made legally binding by consent. If you cannot agree through mediation, then you can apply for a child arrangements order. But you will have had to at least consider mediation first in most cases.
This ultimate guide has been produced by Ian Lovatt
Ian is an Accredited Family Mediator, PPC and Child Inclusive Trained Mediator.
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