We Can't Agree Arrangements for the Children, Should We Go to Court?

In his speech, "When families fall apart, do they fall too easily into court?", Sir McFarlane emphasized that the court should be an option of "last resort". Court should not be the first option for parties who cannot reach an agreement about how their children should spend time with their parents. Sir Andrew McFarlane highlighted that it was the parents responsibility, and not the courts, to agree an arrangement.

He advised separated parents to try "almost anything" before resorting to court action.

What Options Are There for Us to Try?

There are a wide range of options to consider when you are trying to agree child arrangements. These include the following:

• Informal discussions between yourselves. You may wish to have a family member or friend, who you both trust, to help support the conversations.
• Mediation. This is a structured, collaborative process where an impartial third party (a Mediator) assists parents to resolve the matters in issue. They are trained to help with communication and negotiation. A mediator cannot provide either party with legal advice but can provide guidance on how a court may view the situation. You may wish to instruct a solicitor to provide legal advice alongside attending mediation.
• Solicitor negotiation. This process can be more formal. Lawyers can engage in both written and verbal communications with the other party (or their solicitor) to help reach a solution. An experienced family lawyer will have a good understanding of the law concerning child arrangements and can give you specific advice upon your legal position. Instructing a solicitor can be particularly helpful if there is an imbalance between the parties or if one or both parties does not feel that informal discussions or mediation is appropriate.
• Arbitration. This process involves the instruction of a qualified Arbitrator to provide a binding decision on the issues. Both parties must agree to engage in the process and agree to be bound by the decision. Similarly to court proceedings, the control over the decision is taken away from the parties and put in the hands of an independent third party.

What Should I Consider When Trying to Agree Child Arrangements?

What is in the children's best interests is paramount to any decision making and should be at the forefront of both parents minds. Often this can be difficult, particularly if the relationship between the parents is highly fractured. In many cases, both parents want to spend time with their children and sometimes they feel like they are 'missing out' if that child is spending time away from them. That does not have to be the case though and the key to reaching agreement is flexibility.  

Often the practicalities of caring for the children will have an impact on the children. The parents respective proximity to the children's schools can play a big part in the arrangements. Ideally both parents will have the opportunity to take their children to and from school but that is not always the case. Working hours and the parents ability to provide care around work can be a factor that needs to be considered.

As children get older more emphasis is placed on their wishes and feelings.  This can be difficult for parents to accept particularly if a child favoring one parent over the other. In most cases, the court will consider it in the best interests of the children to have contact with both parents but sometimes it is difficult to determine how this will work, particularly if a child is reluctant to engage.

How Can We Help?

Our team of family lawyers are highly experienced at dealing with matters concerning child arrangements. We advise clients through mediation, during solicitor negotiations and also through court proceedings.

Sam Hickman, Head of the Family Team, is also a trained Mediator and can help support you through the mediation process if this is something that could work for your family.

If you would like to discuss how to deal with your finances on divorce, please contact a member of our Family Team, or complete the form below.