For many families going through a divorce, one of the most important matters that will need to be resolved is what the arrangements for their children will be. This includes organising:

a. where the children will live following divorce;

b. how much time the children will spend with each parent and on what basis;

c. what the childcare arrangements will be during the holidays if the children are of school age;

d. what financial provision will be made available for the benefit of the children, including child maintenance; and 

e. other matters such as the arrangements for taking the children on holiday whether abroad or within the UK, the arrangements for special occasions like the children’s and parents’ birthdays, maintaining the children’s relationship with grandparents and extended family members and introducing children to new partners for example.

Communication is key

The key to sorting out child arrangements following divorce is communication – without effective communication, parents will often find it very difficult to agree what the arrangements for their children will be.  However, it is not uncommon for couples involved in a separation or divorce to struggle to communicate effectively when their relationship breaks down and this, in turn, can lead to difficulties in terms of sorting out the child arrangements.

There are lots of resources available to parents to help them communicate constructively following divorce, including co-parenting apps. For helpful tips and recommendations, please see my blog: “parenting after separation – top tips for communication”.

Ongoing relationships

Although the legal status of a parent’s relationship to one another changes following divorce, in that they are no longer the other’s spouse or legal next of kin for inheritance purposes, it is important to bear in mind that if a couple have children together, there will be an ongoing relationship, albeit of a different nature, which continues during the child’s minority and beyond.

Parental responsibility will continue beyond divorce (except in exceptional circumstances) and depending on the age and needs of the child, there may be several important decisions for parents to make following divorce such as:

• choosing which nursery and/or school the child will attend

• agreeing any further educational or extra-curricular provision

• agreeing the child’s medical treatment

• agreeing to any change of name for the child

• agreeing religious matters relating to the child

• agreeing any relocation of the child within the UK or abroad

• looking after the child’s property

There are also likely to be many occasions when divorced parents may still see one another, even when their child has flown the nest – graduation ceremonies, weddings, milestone birthdays and following the birth grandchildren for example.  If parents have built a good foundation for communicating effectively with one another following their divorce and have been able to agree the co-parenting arrangements constructively, this is likely to have a positive impact on these types of life events when the children are grown up.

Parents should also be aware of the child’s right to have an ongoing relationship with both parents following separation and divorce. There is a legal presumption that parental involvement in a child’s life will further the child’s welfare, unless there is evidence to suggest that the parental involvement would put the child at risk of suffering harm. Parental involvement means involvement of some kind, either direct or indirect, but not any particular division of a child’s time. The focus should always be on what is best for the child, and not what is best for the parents – the child’s welfare always being the paramount consideration.

Parents will often also need to address how best to maintain the child’s relationship with extended family members such as grandparents, aunts, uncles and cousins for example and plan how any new partners may be introduced in the future.

How can parents sort out child arrangements following divorce?

It is open to parents to agree the arrangements for their children following divorce. Some parents manage this themselves, with little or no intervention from third parties. Agreed arrangements can then be recorded in writing by way of a parenting plan or more formally in a Consent Order which can be submitted to the court for approval.

If divorcing parents find it difficult to agree child arrangements directly, then there are lots of options available to help them including but not limited to:

a. family mediation – a voluntary process where an independent, impartial and trained professional helps parents reach agreements about vital issues such as child arrangements, money and property following separation.

b. collaborative law – an alternative process where both parties appoint their own specialist collaborative lawyers with a view to reaching amicable solutions together. The process involves discussions taking place face-to-face or remotely by way of four-way meetings attended by both parents and both their respective collaborative lawyers, with a shared commitment of reaching an agreement outside of court; and

c. negotiations through solicitors – one or both parties may instruct a solicitor to help them reach an agreement through the exchange of correspondence, discussions and/or round-table meetings. If the solicitor is a member of Resolution, then this should help the parents reach an amicable agreement as Resolution members are committed to a code of practice, promoting a constructive approach to family law issues that considers the needs of the whole family.

What can parents do if they cannot agree child arrangements?

If parents are unable to reach an agreement amicably, then it is open to them to seek assistance from the court by applying for a Child Arrangements Order to regulate the child’s living and contact arrangements. 

Before an application can be made to the court, the parent intending to apply must attend a Mediation Information and Assessment Meeting (MIAM) with a qualified family law mediator and invite the other parent to attend, unless an exemption applies.

If an application is then made to the court following the MIAM, this will trigger a court timetable to resolve the arrangements. In such proceedings, the court’s paramount consideration will be the child’s welfare, which will involve the court considering a checklist of welfare factors to help decide whether it is in the best interests of the child to make an order and, if so, what the order should be. Further information on Child Arrangement Orders can be found here: Child arrangement order solicitors Children's law - Birkett Long.

Financial provision for children following divorce

Following divorce, parents need to organise not only their own financial and property arrangements, but also ensure there is financial provision for the children of the family.

This includes child maintenance to cover how the child’s living costs will be paid when one of the parents does not live primarily with the child and where the sharing of care for the child is unequal.

Child maintenance is payable if the child is under 16, or under 20 and still in full-time education.

Parents can agree the level and frequency of child maintenance to be paid on a voluntary basis.  To do so, they can use the online Child Maintenance Service (CMS) calculator to work out an amount of child maintenance based on an estimate of how much would otherwise be payable under a CMS formal assessment - https://www.gov.uk/calculate-child-maintenance

If parents cannot agree child maintenance, then it is open to either of them to apply to the CMS for a formal child maintenance assessment, explained further on our child maintenance page.

Divorcing parents will also need to address other financial needs for their children which, depending on the circumstances of the case, may include:

• Ensuring their housing needs are met;

• The cost of educational expenses such as nursery/school fees and extra-curricular activities;

• Whether child maintenance will be provided during tertiary education if the child attends university; and

• Expenses arising from a child’s disability

Can Birkett Long help with child arrangements following divorce?

If you are a parent contemplating or involved in a divorce or know someone that is, please get in touch as I would be happy to offer expert legal advice and to help resolve the child arrangement matters.

As a member of Resolution and a specialist trained collaborative lawyer, I understand the importance of effective co-parenting and the challenges faced by parents when it comes to sorting out the arrangements for their children following divorce.

If you would like more information in relation to these issues, please do not hesitate to contact me. I offer a free 15 minute telephone call to discuss matters and to explain how I can help.

Shelley Cumbers

Shelley.cumbers@birkettlong.co.uk

01206 217378

21/03/2023