How the court sees things
Section 5 of the Children Act 1989 says:
“Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all”.
The effect of that provision is that in normal circumstances, the Court is not concerned with any detailed arrangement in your final consent order which relates to your children.
So it seems that the Court has left you on your own. Better look elsewhere. A good start is www.CMoptions.org. The site is packed with useful information and very supportive.
Most solicitors will provide in your consent order for some short reassurance to the Court with regards to children, mentioning that there are children of the marriage, or otherwise; that provision has been made by the two of you that they shall continue to have a roof over their heads; that you have made satisfactory arrangements for their continued care and upbringing; and that any necessary financial provision has been made.
Best to make your own arrangements
The Court is not concerned with any detail. However, between the two of you, quite different considerations apply. If you are to achieve the clean break in your relationship, confident that you know exactly what has been arranged between you for your children, then you need to cover every detail and record what you have agreed.
This is not an area where you need to pay your solicitor to argue about different opinions on screen time or sleeping over.
Nonetheless, if you are seriously concerned about any aspect of the health or well-being of your child or children then you should not hesitate to use a solicitor. Legal aid is available for all matters relating to the welfare of a child.
The welfare check list
If you want the Mediator to guide your discussion about your intentions for your children, a good starting point is, as ever, what the Court would say. The law is expressed very simply in the Children Act 1989, S 1(3), which says:
“ a court shall have regard in particular to:
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.”
So that is the yardstick for your own arrangements. The items listed here will be interpreted in a broad brush stroke way, not as "rules", but nevertheless, they are what you have to cover.
Where the children will live
We advise you very strongly not to go to court about any issue which could reasonably be resolved between you. No matter how strongly you feel about where the children should live or which school they should attend, somehow, you may have to compromise.
When the children are young it is usual for them to live with their mother. Of course that hits any father hard. However, there is still many instances where the Court will find that the children’s main home should be with their father. The corollary is that the Court should make sure that adequate provision is made in the context of shared custody for the other parent to provide an alternative home or at least frequent and long access.
If you own your property together, it is likely to be one of your most valuable assets - in terms of emotional value as well as financial value. How you decide to deal with it is usually a central issue in the mediation of your separation.
As the children grow older, the Court is more likely to take their wishes into account and the age soon arrives when the natural preference of a small child for its mother disappears.
Who pays for the children?
After a family breakup, the money will not go as far as it did when you were together. That means new calculations must be made not only in regard to housing and other obvious areas but specifically in the area of the cost of bringing up your children.
There must be an immediate understanding and acceptance that there will be less money to spend on shoes, clubs and IT devices than before. The court will insist that your proposed consent order makes a realistic assessment of how you propose to handle money, in its consideration of what is genuinely required for you to pay or receive for the maintenance of your children.
You must recognise that it is most unlikely that you will be able to maintain your former lifestyle, so the sooner that is made clear to your children, the sooner they will become accustomed to a different regimen.
Children arrangements: what about the future?
The more you cover of the possible points of dispute relating to your children, the easier it will be to resolve the final difficult few when you have the extra help from a mediator.
Examples of the sort of points you will need to cover are:
- Where the children will live
- If the children have just one permanent home, precise and fair arrangements will have to be made for timeout with the other of you. Don’t agree precise times if it is unlikely that you will be able to keep to them.
- What agreement will you make for celebration days like birthdays and Christmas?
- When will the children join which parent for main holidays?
- What arrangements need to be confirmed so as to enable the children to continue to attend schools as now – pick up, collection, parent days, et cetera?
- What external activities will still be possible? Which will need to be cancelled?
- How and what will the children be told about a reduced standard of living, as it affects the level of money spent on their clothes and IT hardware?
One of the most difficult areas to agree on is the disciplinary framework. (Now the PC word is “parenting”). It is likely that one of you will have had more influence in structuring the framework in the past. It will not be fair to the children and not good for their relationship with both of you if your ideas are too far apart.
What sum for child maintenance?
The most contentious element around caring for your family is money.
The best way to start is to arrange your financial plan so that expenses relating to the children are separated out from other living expenses. Since you will have to agree all of that in due course, how you divide particular costs between yourself and your children is up to you.
If agreement between you totally fails, the fallback is that the parent with actual day-to-day custody of the children can easily make an application to the Child Maintenance Service for an order for the other to make payment.
Maintenance may be ordered against either of you in favour of the other, to pay for a child’s everyday living cost. It covers children in full time education, up to “A” level only.
The government has published an online calculator to help you to work out a starting point for your child maintenance proposals. There is absolutely no pressure from government or the courts that you follow the system. It is simply an informal tool to help you.
However, the calculator is not intended to take account of the financial affairs of a couple who have no great difficulty in paying for a normal lifestyle for their children.
If the paying parent fails to keep up with payments the receiving parent will have to ask their Child Maintenance Service or go to court for a judge’s order.
It is not a good idea to fail to pay adequate maintenance and it is not a good idea to rush to the CMS unreasonably. Once you involve your local Social Services Department in your lives, you may well find that other areas are affected too.
Child Maintenance Arrangements in Mediation
You will probably find that your mediator is not prepared to advise on what sum should change hands between you for any specific purpose. What you should be able to do however, is to consider the specific proposals you want to make and to reconcile any differences between you as to what might be fair and appropriate.
The essence of any mediation of family related issues is to allow you and your ex-partner to make your own arrangements with encouragement and ideas from the Mediator and if you wish, to discuss privately and individually with him as to how your dispute might be resolved.
If necessary, the mediator will also help you to work out your respective financial positions so that you can see more clearly what cash will be available and what demands you have on it for expenditure.
Of course, if you are going to mediation, you will also be able to deal with a basketful of other issues, as well as child maintenance.