Motherhood

Separated Parents: 7 Difficult Legal Questions Answered

Guest Post: Emma Willing & Antonia Felix, Mishcon de Reya LLP7 months ago6 min read

The breakdown of a relationship is typically a fraught and emotionally challenging time. This can be even more so when children are involved or legal proceedings begin.

Mom and baby

With our collective 25 years of family law experience, we answer some of the most frequently asked questions for separated parents.

Do I have to go to Court if we cannot agree the arrangements for our children? What are the alternatives?

Whilst sometimes disagreements about children result in court proceedings, this should be a last resort and there are a number of alternatives.

Mediation – A mediator is a neutral facilitator. The mediator will be entirely independent from the parents and their respective solicitors (should the parents have them). Whilst the mediator can facilitate and encourage discussions between separated parents, overall resolution can only be reached by agreement. If an agreement is reached in mediation, this will not represent a binding final agreement until the parents have had the opportunity to seek legal advice.

Arbitration – An arbitrator can be jointly appointed by the parents to make a decision in respect of the dispute. The advantage of arbitration is that resolution can normally be reached far more quickly than through the Court process. The arbitrator can impose a final outcome on the parents. However, unlike mediation which may result in an agreement, the parents may feel that they have less control over the eventual outcome.

Early Neutral Evaluation – A solicitor or barrister would be appointed jointly by the parents in order to provide an indication in respect to the issues in dispute. The indication provided can then assist the parties in negotiating an overall agreement.

Round table meeting/discussions between solicitors – There can be discussions between the parents’ respective solicitors either via correspondence or at a so-called “round table meeting” (which does not, despite the name, have to involve the parties sitting together!) to resolve the issues.

Do I have to put my ex-partner’s name on the birth certificate?

Parental responsibility defines the rights and responsibilities that an individual has in respect to a child and determines who has decision-making power in matters such as education, religion and medical treatment.

The birth mother of a child automatically acquires parental responsibility at birth. This doesn’t apply to the father or non-birth mother (in the case of a same-sex female couple), unless they were married or in a civil partnership with the mother at the time of the birth.

If the parents are unmarried, the mother isn’t required to enter the father or non-birth mother’s name on the birth certificate and if she doesn’t, the father or non-birth mother will not then have parental responsibility. Despite this, there are applications which can be made in order to obtain parental responsibility. However, the position can be complex, depending on the precise circumstances of the child’s conception and the marital status of those involved.

Does my ex-partner have a greater influence over the decision making for our children? Is my ex-partner allowed to change our child’s surname?

Provided both parents have parental responsibility, any important decisions in respect to the child must be made by the parents jointly.

The consent of all those with parental responsibility is required in order to change a child’s surname. If agreement cannot be reached as to a child’s surname the parent seeking the change of surname would need to issue an application to Court. The Court’s primary focus in determining such a dispute will be an assessment of what is in the child’s best interests.

Can I take our children abroad on holiday without my ex-partner’s agreement?

Neither parent should take children abroad without the other parent’s agreement. The exception to this is in the event that a parent is named as a person with whom a child is to live in the context of Child Arrangements Order. In those circumstances, that parent has right to take the child abroad for up to one month without the consent of the other parent. Even in those circumstances, that parent will be expected to notify the other parent of the full holiday details in advance.

If there is a dispute about our children, will they have to come to Court and are their wishes and feelings taken into account?

One of the factors the Court is required to consider in any dispute are a child’s wishes and feelings taking into account their age and understanding. Therefore, there is likely to be greater weight attached to the views expressed by a 12 or 13 year old compared to a child of 3 or 4 years old.

It will typically be the case that a Cafcass Officer (a Court appointed officer, frequently with a social work background) will speak to the children in the context of preparing a ‘welfare report’ in order to discover their wishes and feelings. There are rare occasions in which a Judge will speak to the children in a case, this will normally be older children.

Which professionals can help us in respect to our children following separation, including helping children cope with the stress of the separation?

Many schools will have therapeutic support available. If that isn’t available, consideration should be given to appointing a child therapist or psychologist separately. Normally parents would meet with the child therapist or psychologist first to work out the most appropriate way forward, including whether the child therapist should meet with the child.

If any form of medical intervention is required, this will likely be following a GP referral in which case the involvement of a psychiatrist may become necessary. Together with individual child therapy, there is also the option of family therapy to assist difficulties with overall family dynamics. The involvement of any professional in respect to a child would require the parents’ joint consent provided they both had parental responsibility.

Will the Court make an Order regulating with whom our children should live, beyond their 16th birthday?

The Court will not make an Order regulating with whom a child is to spend time, which goes beyond a child’s 16th birthday unless the circumstances of the case are exceptional. In relation to cases involving children in their teens (particularly those aged 14 – 16) the Court will increasingly take their wishes and feelings to be determinative and may refuse to intervene, as it will take the view that it cannot force a child within this age bracket to do something.