Arrangements over the custody of children (called residence arrangements by lawyers) after the breakdown of a relationship are usually best decided without the intervention of the court. Unfortunately, it is not always possible for the two parties to agree over living arrangements or what level of financial support is appropriate. Both parents normally have a legal responsibility under the Children Act 1989
to look after their children, financially and otherwise, until they are 18 years old or have left full-time education.
Part of the process of filing for divorce involves completing a Statement of Arrangements. This document contains, amongst other information, the details of how the parties to the divorce would like to arrange custody of any children. If both parties are in agreement, and the court is satisfied that these arrangements are adequate and have been agreed between the parties, then the court is very unlikely to interfere.
If the parties cannot agree on child custody, then the court can be asked to settle the dispute. This can happen as part of a divorce or in the case of unmarried parents. Normally, between four and ten weeks after applying for a court order, both parties will be asked to attend a meeting with the judge. The court will generally suggest that the parties meet with a Conciliation Officer to try to encourage an agreement. The alternative – going to court – will almost certainly be a traumatic event for everyone involved and is normally best avoided if possible.
The main advantage of using mediation instead of the court process is that it helps to avoid some of the hurt and anger that is inevitable when trying to settle such emotive issues in court. In addition, when an arrangement is reached by mutual consent rather than being imposed, it is more likely that both parties will honour it. Refusal to attend mediation may also have costs consequences for the party concerned. The disadvantage of mediation is that it can be quite stressful for both parties to have to meet regularly.
Normally, an officer of The Children and Family Court Advisory and Support Service for England and Wales (CAFCASS) will also attend one or more of the meetings. If it is not possible to reach an agreement then the judge will normally request a court welfare report. It is the CAFCASS officer's job to draw up this report and it will involve meeting with the child and the parents as well as other relevant professionals, such as teachers and doctors. It may also involve the CAFCASS officer visiting the parties at home.
More recently, the Government undertook a review of the operation of the family courts with the avowed intent of reducing the time taken for residence arrangements to be decided. This led to a report in 2012 called 'Supporting separated families; securing children's futures' containing a new set of proposals.
The consultation closed in October 2012. It is expected that any changes will be introduced in 2013.
Within about three to six months a further hearing will be arranged by the judge to explain the decision. In making its decision the court will consider, first and foremost, what is in the best interests of the child. This decision will usually follow the recommendations of the welfare report.