Almost every unresolved dispute between parents over arrangements for children is referred to the Children and Family Court Advisory and Support Service (‘Cafcass’), which looks after the interests of children involved in family proceedings. Cafcass will investigate the case and report back to the court, usually with a recommendation as to what orders the court should make.

And sadly in many of those cases there are issues regarding alleged domestic abuse. For example, where a father is seeking contact with his children the mother may allege that the father has been abusive towards her. Such cases must, of course, be very carefully handled by all involved, including Cafcass.

Last year the Ministry of Justice set up an expert panel to look into how the family courts protect children and parents in private law children cases concerning domestic abuse and other serious offences. The panel made a number of serious findings in relation to both the processes and the outcomes for parties and children involved in such proceedings.

In response to those findings Cafcass has published an improvement plan which provides key priorities to strengthen its practice with children and families who have experienced domestic abuse, being clearer about how they explain their decisions to them, and improving the effectiveness of their management oversight.

Cafcass Chief Executive Jacky Tiotto said:

“We are committed, alongside other agencies in the family justice system, to improving all of our work with children and families who have experienced domestic abuse. It’s been so important to build on what we heard from the Ministry of Justice’s Expert Panel on Harm, and our own subsequent work to review and understand the quality of our practice and improvements that we need and want to make. We hope that the learning from our listening over the last year is explicit in our improvement plan and our wider learning and development programme. Children and families who experience our support and help deserve the very best from us and we want to offer advice to the family court that promotes the best interests of children and secures their safety.”

Hopefully, the plan will mean will mean a better service for all children and families who have experienced the scourge of domestic abuse.

Obviously, domestic abuse is a very serious issue in cases concerning children, and can have a significant bearing upon the outcome. Whether you are the victim or the alleged abuser you should therefore seek expert legal advice, at the earliest stage. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Divorce of course arises from past events that led to the breakdown of the marriage. But that does not mean that the divorce itself must be all about what has happened in the past.  

All too often divorcing couples become mired in arguments about the past, but all that achieves is more animosity, more delay and more legal costs.

Of course, it can be difficult to put the past behind you, especially when those events had such a significant effect upon your life. The temptation to raise past events in divorce proceedings can be overwhelming.

And it doesn’t help when one sees divorcing celebrities dragging up the lurid history of their marriage in the popular media every day. The idea that this is ‘normal’ behaviour by divorcing couples is a trap that is all too easy to fall into.

And many people going through divorce think that the past behaviour of their spouse will be of crucial interest to the court in determining what orders it should make.

But, save where there has been domestic abuse, the court is largely not concerned with past behaviour. The real concern of the court is what should happen in the future.

Let us look at the three main things involved in divorce proceedings: dissolving the marriage, sorting out arrangements for children, and sorting out finances.

It is true that at present if a person wants to get divorced before they have been separated for two years they will need to prove that their spouse has committed adultery or behaved unreasonably. But the court isn’t really concerned about these things, only that the marriage has irretrievably broken down. And findings of adultery or unreasonable behaviour will usually have no bearing whatsoever upon other matters, such as children and finances.

And when no-fault divorce comes into force, now expected to be next year, then it will not be necessary at all to show why the marriage broke down.

Arrangements for children are all about the future: deciding how best the children should spend the rest of their childhood. Of course, past events may be relevant to that decision, but in the vast majority of cases they do not change the simple position that children should continue to have as full a relationship as possible with both parents.

Lastly, sorting out finances on divorce is in most cases driven by the future financial needs of each party, not about what has happened in the past. In particular, bad past behaviour by one party will be of no relevance to the financial settlement, save in the most extreme of cases.

You can’t change the past, but you can change the future. Divorce is not about what has gone before, but about making a new start, and ensuring you have the best arrangements in place for that future, for yourself, and especially for your children.

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The Court of Appeal has given guidance upon the approach that the Family Court should take to allegations of domestic abuse when dealing with disputes between parents over arrangements for their children.

As we mentioned here in this post, the court was hearing four linked appeals by mothers involved in proceedings relating to their children, in which the mothers had raised issues of domestic abuse.

As the Court of Appeal pointed out, allegations of abuse are often made by one or both parents in children cases. In fact, it is estimated that at least 40% of such cases now involve allegations of domestic abuse.

When allegations are made, the court must decide, usually at an initial ‘fact-finding’ hearing, whether they are true and what effect, if any, they should have upon the arrangements for the children.

This can obviously be a difficult task, balancing on one hand the safety and welfare of the child, and on the other hand the ‘right’ of the child and parent to have a continued and full relationship.

The guidance given by the Court of Appeal focussed primarily upon the issue of coercive and controlling behaviour.

Coercive and controlling behaviour involves one party seeking to restrict the other, over a period of time. It can take many forms, such as the abuser preventing the other party from spending time with their family and friends, or controlling them by restricting their access to money.

Emphasising the importance of such behaviour, the Court of Appeal said that the courts should prioritise consideration of whether a pattern of coercive and/or controlling behaviour is established, over and above the determination of any specific factual allegations.

The Court of Appeal stated that where one or both parents assert that a pattern of coercive and/or controlling behaviour existed, that assertion should be the primary issue for determination at the fact-finding hearing. Any other, more specific, factual allegations should be considered because of their potential relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation (such as an allegation of rape) was so serious that it justified determination irrespective of any alleged pattern of coercive and/or controlling behaviour.

The guidance was welcomed by Lucy Hadley of the domestic abuse charity Women’s Aid, although she expressed concern that it did not go far enough, saying:

“…we are severely disappointed that the Court of Appeal did not call for an end to the ‘contact at all costs’ approach, which is putting women and children experiencing domestic abuse in danger … We fear this judgment has not recognised the urgent need for wholesale reform to make the family courts safe for survivors. We will continue to fight for a change to the presumption of parental involvement in domestic abuse cases – for good.”

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If you are a victim of domestic abuse you should seek expert legal advice, at the earliest stage. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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The biggest divorce news of the week is of course that Kim Kardashian has reportedly filed for divorce from Kanye West. This latest celebrity divorce has already filled huge numbers of column-inches in newspapers and magazines across the world.

Our fascination for celebrity divorce seems to know no bounds. But can we actually learn anything useful from them? Anything that may be of relevance to ‘ordinary’ people going through marriage breakdown?

Well, sometimes we can, especially when (to the obvious delight of newspaper editors) the divorce gets ‘nasty’. Hopefully, Ms Kardashian and Mr West’s divorce, if it goes ahead, will not fall into this bracket, but sadly many celebrity divorces do, just as do many divorces involving ‘ordinary’ people.

Watching the awful spectacle of a nasty celebrity divorce play out in front of the world’s media must surely act as a warning to all: don’t let this happen to me.

And you don’t have to let it happen. You are in control. There are many things that you can do to avoid an unpleasant divorce. We have given much of this advice here previously, but it merits regular repetition.

Put the animosity of the breakup behind you – Obviously, many marriage breakdowns involve considerable animosity, and a simple mistake that parties make is to carry that animosity over to the divorce proceedings.

This can take many forms, from making irrelevant allegations against the other party, to seeking unrealistic outcomes. All of which will, of course, simply add to the stress, cost and time that the case will take to resolve.

Obviously, it is easy to say that animosity should be left behind, but hard to do it. However, all parties should try.

Concentrate on what is important – The important things in a divorce case are firstly sorting out arrangements for any dependent children and secondly sorting out the financial settlement.

But all too often parties will get side-tracked by other matters, or by matters that they think are relevant to children or finances, but actually are not. And this is where our next point comes in:

Follow advice – Take the best legal advice you can, and follow it. Your lawyer will tell you what is important or relevant, and what is not, and will ensure that you concentrate on the issues that really matter.

We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

Consider mediation – Lastly, remember that court proceedings are not the only way to resolve a family dispute. Try to resolve the matter by agreement, and if that is not possible, consider using mediation as a way of resolving matters.

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The family courts are, of course, open to all, irrespective of means or social status. However, a new piece of research indicates that the users of the courts are not spread evenly across all strata of society.

The research was carried out by the Nuffield Family Justice Observatory, which aims to support better outcomes for children, by improving the use of data and research evidence in the family justice system in England and Wales.

The research examines trends in demand by parents in England for the family courts as a means of resolving disputes over arrangements for their children.

The research found that separated parents in England who depend on the family courts to resolve such disputes are likely to live in the country’s most deprived areas. It also revealed a clear north-south divide in the number of applications being made, with rates being consistently highest in the North East, North West and Yorkshire and Humber regions, and consistently lowest in London and the South East.

The figures showed that in 2019/20, 30 per cent of applicants lived in the most deprived 20 per cent of the wider population, whereas just 13 per cent lived in areas in the least deprived 20 per cent.

The research also showed that in 2019/20, application rates in the northern regions ranged between 79 and 81 per 10,000 families with dependent children, but were just 44 per 10,000 in London and 59 per 10,000 in the South East.

And despite these findings, there was also evidence of a ‘justice gap’, due to the abolition of legal aid for most private law family matters (i.e. cases not involving social services) in 2013, with a reduction in the proportion of applications brought by people living in the most deprived areas.

Commenting upon the research the President of the Family Division Sir Andrew McFarlane said: “The body of individuals who come to court with private family law problems are disproportionately represented from areas of which that are the most socially deprived… More cases come from the north of the country than the south. Should we be targeting our resources, attempt to engage with people before they come to court in a more specific way that meets the needs of those groups? I think so. Knowing something about who they are from this research is helpful.”

And the Observatory says: “It is critical that policy makers consider the role of deprivation as a factor in private law cases and its interaction with other factors such as conflict, domestic abuse and other child protection issues. This will be an important step in informing, and possibly reshaping, the response to private law need in both the court and out-of-court context.”

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Family Law Café offers a modern, agile and compassionate approach to family law, giving you a helping hand when you need it and guiding you through the complexities of this difficult and stressful area. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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The reader may have noticed in the news that the UK’s transition out of the European Union (‘EU’) was completed on the 31st of December (if not, where have you been?). What you may not realise, however, is that this has significant implications for any family law cases involving the EU.

Just to recap, the UK actually left the EU on the 31st of January 2020. However, there was then a transition period, during which the UK continued to abide by certain EU rules. The transition period ended on the 31st of December.

So what are the implications for family cases involving the EU? (Note that what follows relates only to cases involving the courts of England and Wales.)

There are two main sets of rules that apply to family cases in the EU. One, known as ‘Brussels II’, deals with jurisdiction and the cross-border recognition of judgments. The other, the Maintenance Regulation, sets out rules regarding maintenance cases.

Both sets of rules continued to apply to cases in England and Wales until the 31st of December, but have both now been revoked. This means that they do not apply to any cases starting after the 31st of December.

What does this actually mean? Well, there will be changes in the way it is decided what country’s courts should deal with divorce and children cases, and how court orders relating to such cases made in an EU country are recognised (or not) by the courts of this country. There will also be similar changes relating to maintenance cases, including the enforcement of maintenance orders made in another country.

The details of these changes are quite technical, and are beyond the scope of this post. The thing to take from all of this, though, is that if you are or may be concerned with a family case involving the EU then you really need to instruct an expert family lawyer, who can guide you through the changes. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

Finally, it should be mentioned that the rules relating to international child abduction, and the return of abducted children, have not changed, as those rules are incorporated into our law. If your child has been abducted, or if you believe that they are at risk of being abducted, then you should instruct an expert family lawyer immediately – again, Family Law Cafe can help you find an expert.

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The Family Justice Board, which oversees and directs the family justice system, has produced a statement that summarises the priority actions it intends to pursue in response both to immediate pressures within the family justice system, and to bring about longer-term reform.

The Board says that increasing numbers of children have experienced delay to the court proceedings in which major decisions will be made about their lives. Backlogs in private law cases (i.e. children cases not involving local authorities) have increased by 18% since before the start of the March lockdown. For those cases being heard, the average time to conclude a case is now 29 weeks.

HM Courts & Tribunals Service (‘HMCTS’) estimates that private law cases may not return to pre-Covid levels for another three years.

The Board reports that to deal with these issues HMCTS has recruited approximately 900 additional support staff, with currently around 700 further appointments sought; that approximately £3.5m additional funding has helped Cafcass, which looks after the interests of children involved in family proceedings, increase staffing levels to respond to record levels of open cases; and that a programme of recruitment to increase judicial capacity is ongoing.

The Ministry of Justice has also announced additional ‘Nightingale’ courtrooms, to bolster the national effort to tackle the impact of coronavirus on the justice system.

As to the future, the Board says that immediate recovery priorities include “changes to alleviate the backlog of cases growing in ways which ensure risk is identified and the most urgent cases seen first.”

Where appropriate, couples will be encouraged to resolve disputes out of court, for example via mediation, thereby reducing the pressure on the court system.

Another way that pressure may be reduced is by more hearings being dealt with by the court ‘on the papers’, without the parties having to attend court.

Longer term reform plans include a revised system to deal with private law cases, in which issues are identified at an early stage in cases, so that the appropriate resources are allotted to each case. Where relevant, courts will also utilise a ‘problem-solving’ approach to the resolution of cases, whereby the court looks at ways of resolving problems faced by separating families, such as drug and alcohol abuse.

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Family Law Café offers a modern, agile and compassionate approach to family law, giving you a helping hand when you need it and guiding you through the complexities of this difficult and stressful area. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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A multi-disciplinary group of family law experts has recommended that in any dispute between parents over arrangements for children the rights of the children be put first, and that the court should be the last resort in resolving the dispute.

The Family Solutions Group was formed earlier this year, with a brief to give fresh and focused attention to improving the experiences of, and opportunities for, separating families away from the Family Court. The Group’s report What about me?: Reframing Support for Families following Parental Separation, has just been published.

The report observes that the current processes for resolving disputes over arrangements for children (in or out of court) tend to operate largely for parents. The group proposes the creation of a framework of directly accessible community-based services for children and young people whose parents separate, offering them information, consultation, support and representation.

The group also recommends that there be a presumption that all children and young people aged 10 and above be heard in all issue-resolution processes outside of the courtroom.

As to court proceedings, whilst the group acknowledges that the need for swift and unimpeded access to the Family Court is rightly recognised as vital for some families, particularly where there are safety concerns, the group nonetheless reframes how we should consider the arrangements for issue resolution in and out of the court system. Significantly, it encourages all involved in such disputes to recognise the fact that many parental disagreements about children following separation are not legal disputes, and that a legal response may indeed be unhelpful for many families.

Commenting on the report the President of the Family Division Sir Andrew McFarlane said:

“It is thought that about 40% of all separating parents bring issues about their children’s care to the Family Court for determination, rather than exercising parental responsibility and sorting problems out themselves. This figure is both startling and worrying. Where there are no issues of domestic abuse or child protection, parents ought to be able, or encouraged, to make arrangements for their own child, rather than come to a court of law and a judge to resolve the issues.

“The number of these private law applications continues to increase, and the trend is that more and more parents see lawyers and the court as the first port of call in dispute resolution, rather than as the facility of last resort as it should be in all cases where domestic abuse or child protection are not an issue.”

You can read the full report here.

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Family Law Café offers a modern, agile and compassionate approach to family law, giving you a helping hand when you need it and guiding you through the complexities of this difficult and stressful area. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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A remarkable case was published last month in which a 41 year-old man sought to make a claim for financial support from his parents. The claim failed, but the case raises the question: when can an adult child make a financial claim against their parents?

Normally of course financial claims for children are made on their behalf by a parent, whilst the child is still a minor, i.e. under 18. However, it is possible for an adult child to make a financial claim against their parents, albeit in very limited circumstances.

Note that this post does not refer to claims by an adult child against the estate of a deceased parent – such claims are not unusual. And nor does it refer to civil money claims by a child against a parent, such as debt claims.

So what ‘family law’ claims can a child make against their parent(s)?

Since 1993 child maintenance claims have of course usually been made under the Child Support Act. However, the Act only provides for child support maintenance claims to be made by a parent or carer of the child – it does not include provision for adult children to claim maintenance for themselves.

There are, however, ways in which an adult child can make financial claims against their parents. In summary, there are provisions under which they can claim maintenance or even a lump sum from either or both of their parents.

But there are limitations to such claims, depending upon what type of claim is being made. We will not go into detail, but two particular limitations apply in all cases: a court can only make an order against a parent if:

1. The child is, will be or (if an order were made) would be, receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while they are in gainful employment; or

2. There are special circumstances which justify the making of an order. ‘Special circumstances’ is not defined, but it is generally thought to refer in particular to cases in which the adult child suffers from a disability. There may, of course, be other types of special circumstance, but it is likely to be very rare for a claim to be allowed on this basis.

In short, the law generally considers that a parent’s financial obligations towards their child cease when the child reaches the age of 18 or, if the child is then still financially dependent upon them, when the child is no longer dependent. The child will usually be no longer dependent when they finish education, unless they suffer from a disability, in which case the dependency could be for life.

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If you are, or may be, involved in making an application for maintenance or financial provision for a child then you should seek expert legal advice. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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A judgment handed down last Friday contains an important lesson for all parents involved in disputes over arrangements for their children.

Such disputes can throw up many issues. Some of those issues will of course be of great importance, requiring the intervention of the court. But many of the issues are actually comparatively trivial, although it may not seem that way to the parents.

In the judgment the judge warned parents against clogging up the courts with unnecessary children applications.

He gave examples of the sort of applications he was referring to (all of which arose before him in the previous month):

“i) At which junction of the M4 should a child be handed over for contact? ii) Which parent should hold the children’s passports (in a case where there was no suggestion that either parent would detain the children outside the jurisdiction? iii) How should contact be arranged to take place on a Sunday afternoon?”

Other judges, he said, have given him many other, similar examples.

He concluded:

“…the message in this judgment to parties and lawyers is this, as far as I am concerned. Do not bring your private law litigation to the Family court here unless it is genuinely necessary for you to do so. You should settle your differences (or those of your clients) away from court, except where that is not possible. If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you. There are many other ways to settle disagreements, such as mediation.”

It is a message that should be heeded by all parents involved in disputes over arrangements for their children: before you rush off to court, stop and think whether you really need to. Can you resolve the matter without going to court, possibly via mediation?

And remember the warning: the courts are very busy – if you waste court time then you could be criticised by the judge, and even sanctioned, for example by being ordered to pay the other party’s costs.

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If you are contemplating making an application to the court in relation to a dispute over arrangements for children then we would strongly recommend that you first seek the advice of an expert family lawyer. Family Law Café can put you in touch with such an expert – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Family Law Cafe’s accessible team of legal experts from various disciplines expedites the customer’s case and keeps them informed and in control 24/7 through a unique and secure online portal. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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When parents separate the most common scenario is that their children will spend most of their time living with just one of the parents, either by agreement between the parents, or in accordance with a child arrangements order.

Under what circumstances, though, will the court alter this fixed arrangement, ordering that the child should spend most of its time living with the other parent (what used to be known as a ‘transfer of residence’)?

Perhaps the first thing to say is that if the change in arrangements is agreed between the parents, then the court will almost certainly go along with it, although in such circumstances a court order may not actually be necessary.

All about welfare

Otherwise, if the issue of a possible change in living arrangements is contested by the parents then, as always, what the court decides to do will be dictated by what is best for the welfare of the child. The court will decide this by reference to the ‘welfare checklist’, as we explained in this post.

So if the child’s welfare dictates that there should be a change in the child’s living arrangements, then that is what the court will do.

For example, one of the factors on the welfare checklist that the court should take into account is the child’s ascertainable wishes, considered in the light of the child’s age and understanding. Thus if, for example, an older child expresses a clear wish to live with the other parents, and if the other parent has suitable accommodation, then it is likely that the court will order a change of living arrangements.

But perhaps the primary issue that could lead to a change of living arrangements is another factor in the checklist: any harm which the child has suffered or is at risk of suffering. If the court finds, for example, that the child has suffered harm whilst living with one parent then it may order that the child should live with the other parent.

One of the most notable illustrations of this is when the court makes a finding that the parent with whom the child is living has alienated the child from the other parent. In such a case the court may, as a last resort, order that the child should be removed from the alienating parent, and move to live with the other parent.

Of course, whenever it is considering the possibility of ordering that the child should live with the other parent then the court must also consider another of the checklist factors: the likely effect on the child of any change in his or her circumstances. If the court finds that the change could be detrimental to the child, then it will only order the change if that detriment is outweighed by other factors.

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If you are considering a possible change of living arrangements for a child then we would strongly recommend that you first seek expert legal advice. Family Law Café can put you in touch with an expert family lawyer – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Family Law Café offers a modern, agile and compassionate approach to family law, giving you a helping hand when you need it and guiding you through the complexities of this difficult and stressful area. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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It is of course natural that when parents separate they will both want to spend as much time as possible with their children. This can often lead to situations in which one parent believes that the children should spend most of their time with them, and the other parent insists that the children should spend equal time with each parent.

So when are the courts prepared to make shared care orders?

Before we answer that, a note on terminology.

A shared care order is actually a type of child arrangements order. A child arrangements order specifies “with whom a child is to live, spend time or otherwise have contact, and … when a child is to live, spend time or otherwise have contact with any person”. Technically, therefore, when we talk of shared care orders, we are actually referring to shared ‘live with’ orders.

Note that this does not necessarily mean equal sharing time between each parent. It just means that the child spends substantial time living with each parent.

Note also that an order that a shared care order is not required to acquire equal status with the other parent, as some parents assume. A parent with a ‘lives with’ order and a parent with a ‘spends time with’ order (i.e. a contact order) have equal parental responsibility, assuming that they already both have parental responsibility, as is usually the case.

Shared parenting presumption

What the law does however state is that when a court considers arrangements for a child it should presume, unless the contrary is shown, that involvement of both parents in the life of the child concerned will further the child’s welfare. This is known as the ‘shared parenting presumption’.

Once again, however, the presumption does not mean that the child should spend equal amounts of time with each parent, just that each parent should play as full a role in the child’s life as the court thinks appropriate.

Considerations for the court

Obviously, there are practical matters to consider before making a shared care order. Both parents must have suitable accommodation, in particular sleeping accommodation, and must not live too far from the child’s school.

Otherwise, it really just boils down to what is best for the welfare of the child, as in every case concerning child arrangements. In deciding what is best for the child’s welfare the court will consider the ‘welfare checklist’, as explained in this post.

It used to be considered that shared care orders were only appropriate if the parents remained on good terms with one another, as shared care can require greater cooperation between the parents. However, it is no longer considered that this should be a requirement for shared care, and such orders are now made even in cases where the parents no longer have a good relationship with one another provided, of course, that the court thinks that this would be best for the child.

The last thing to say is that there is nothing special about equal shared care, whereby the child spends exactly half of its time with each parent. The court will not be specifically seeking to achieve this where it thinks shared care is appropriate and, indeed, equal time orders are comparatively rare. As always, the exact time the child should spend living with each parent is determined by reference to what is best for the child’s welfare.

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If you are considering seeking a shared care order then we would recommend that you seek the advice of an expert family lawyer. Family Law Café can put you in touch with such an expert – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Family Law Cafe offers a modern, agile and compassionate approach to family law, giving you a helping hand when you need it and guiding you through the complexities of this difficult and stressful area. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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