A Guide to Getting Divorced with Young Children Part 1: What orders can the Court make?

If you’re getting divorced with young children, you should be aware of the Children Act, which handles disputes that can arise when deciding child care arrangements.

This guide is a three-part series concentrating on parents bringing or objecting to an application.

Child care during divorce series

Part 1: What orders can the Court make?
Part 2: How to make a Child Arrangements Order, Specific Issue Order or a Prohibited Steps Order
Part 3: What happens after my application has been made

Disputes can arise from any number of circumstances when getting divorced with young children. Common disputes we come across include:

  • Where, and with whom, a child will live
  • Amount of time they will spend with each parent
  • Disagreements concerning schooling
  • Medical treatment
  • Refusing to return a child after a contact session
  • Threatening to take the child to live abroad without the other parent’s agreement

Part 1: What orders can the Court make?

If you’re getting divorced with young children and you and your partner and are having a disagreement about the future arrangements for your children, your case would be dealt with by the Family Court, should you wish to file an application for judgment.

The Family Court: Where is it and who manages your case?

There are a number of Family Courts throughout the country. The commonly used Family Courts for families in Burton-upon-Trent and the local area are:

  • The Derby Family Court
  • The Stoke on Trent Family Court
  • The Stafford Family Court

If you file an application to the Family Court, your case will be dealt with in one of two ways: You will either by dealt with by a District Judge, or alternatively a panel of three lay justices (also known as magistrates) selected from the family panel. Magistrates are now family lawyers, but individuals who are given guidance for both legal matters and legal procedure by a qualified lawyer.

What legal powers do the Family Court have?

Essentially, the Family Court seeks to regulate or restrict the responsibility of either one of both parents in relation to their child or children. These regulations are defined in the 1989 Children Act, Section 3(1).

To quote the legislation, the Family Court has “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

What types of Orders are there, and which do I need to apply for?

Child Arrangement Orders: For living and contact arrangements

A Child Arrangement Order regulates who a child will live with and the amount of time the child will spend with the other parent.

The main reason for applying for a Child Arrangement Order is when you and your partner are separating and can’t agree on the living arrangements for your child or children.

You would also need a Child Arrangement Order if you have agreed who the child will live with but can’t agree on the amount of time they will spend with the other parent.

Other reasons could include if one side wants to impose conditions on the other parent seeing the child in order to protect the child’s welfare.

For example, one side may want to require restrictions such as:

  • supervised contact
  • indirect contact by letter, phone or video call

If this is the case, then you will need to apply to the Family Court for a Child Arrangement Order for them to make a judgment on regulating child contact arrangements.

Specific Issue Orders: For schooling, location and other issues

A Specific Issue Order is, as the name suggests, for when you and your partner can’t agree on a specific issue while getting divorced with young children.

A common issue when getting divorced with young children is agreeing on which school the child or children should attend. Another potential issue is when one parent wants to relocate with the child, either to another part of the country or even abroad.

If either of these issues arise, then it is necessary to apply for a Specific Issue Order for the Court to make a judgment on what is best for the children involved.

Prohibited Steps Order: When urgent action is required

A Prohibited Steps Order focusses on stopping one parent from taking certain actions without the permission of the Court. This essentially restricts the parent’s ability to exercise their normal parental responsibility.

These orders are usually made in urgent situations without giving notice to the other parent (if the situation is particularly serious).

Examples of situations where a Prohibited Steps Order should be used include:

  • If one parent tries to remove the child from the normal care of the other parent without agreement
  • If one parent threatens to take the child abroad without the consent of the other parent
  • If one parent wants to move the child from the school that they’re enrolled in without the consent of the other parent

How does the Family Court decide what to do?

When getting divorced with young children, the main thing that the Court considers is the welfare of your child or children. Any decision from the Family Court will always be in the child’s best interests.

Section 1 of the Children Act 1989 states: “when a Court determines any questions in respect of the upbringing of a child, the child’s welfare shall be the Court’s paramount consideration”.

The Court will particularly focus on:

  • The wishes and feelings of the child concerned – considered in the light of their age and understanding
  • The child’s physical, emotional and educational needs
  • The likely effect of any change in the child’s circumstances
  • The child’s age, sex, background and any characteristics which the Court considers relevant
  • Any harm the child has suffered or is at risk of suffering
  • How capable both parents are of meeting the child’s needs (this also includes any other person relevant to the case)
  • The range of powers available to the Court under this Act in the proceedings in question

Does using a specific Order guarantee a certain result?

Simply, no. The Court’s decision is not restricted by the type of Order you submit.

The Court will always focus on what is best for the child or children, and their view may or may not be the same as yours. There is always the possibility that neither parents get the outcome they wanted at the start of the process.

The Court’s duty is always to protect the child. Particularly if (for example) the Court thinks the child is at risk of possible significant hardship, it could ask the Local Authority to get involved in your case.

In the next article: How to make an application

In the next article, we will go into detail about how to make an application to the Family Court. We also cover the need for mediation to take place (under normal circumstances) before an application is made to the court.

Enquire for help with Divorce and Separation disputes

Are you separating from your partner or getting divorced with young children? If you’re having trouble agreeing arrangements for your child or children, our Divorce and Family Law team are here to guide you through your options. We can advise on the best course of action and, if needed, complete a Family Court application on your behalf.

Contact our Divorce team directly

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