Tribunal costs orders – claimants beware
When a relationship breaks down there is often a discussion about whether the children will live with one parent or the other. While we are in an age of 'shared parenting', the reality is that this does not normally mean that children live with each parent 50% of the time. The age of the children, distance between homes or work commitments may simply make that unworkable. While it might be an outdated term, this means that one parent usually has 'primary care'.
You and your former partner are likely to share parental responsibility for the children, whatever the living arrangements. This should mean you are involved in all major decisions such as those about their health or schooling. As many parents in this situation will know, the reality of the situation is however that the parent with whom a child lives has more day to day involvement in raising that child. More worryingly, many parents feel that the parent with whom the children lives start to see the children as theirs, with contact being in their gift.
So what happens when your former partner (the 'primary carer' or 'resident parent') is not supportive of the time you spend with your children? What if they go so far as to prevent you seeing them, either openly or by producing a wide range of excuses (e.g. "Jane's too tired", "Sam's sick", "Tom has a birthday party", "Lucy doesn't sleep well in your new home", etc.)?
Sometimes mediation can help you find a way forward. It is often less divisive and both parents have a direct input into an outcome that works for them and their children. But in other cases you may have no option but to seek the Court's assistance in resolving your differences. This would involve making an application asking for an order that the children spend certain times with you. While you would hope the starting point would be a resounding "yes", sadly the response is rarely that straightforward. The Court (quite rightly) has to determine what is in the best interests of the child. This means the Court will look at evidence from both parents and a Court appointed welfare officer at the very least. The Court may also want to know about the wishes and feelings of the child involved. Many parents express concern that the parent with whom the child lives can influence such an investigation. And, in any case, most express outrage that they must become embroiled in a lengthy and often expensive process whereby they have to give evidence about why their own child should spend even a small amount of time with them.
Some relief comes in the form of the recent decision in B (A Child)  EWCA Civ 1041. In that case, the judge found that the primary carer's history of disrupting contact and the steps they had taken to damage the child's relationship with the other parent were such that contact arrangements could not safely be left in the control of the resident parent. An order was therefore made to change the parent with whom the child lived. This may make good reading for those of you who find yourself in similar situations but, sadly, the facts are not always so clear cut, nor is the Court always so robust.
The majority of cases I have seen involve the non-resident parent litigating to spend maybe just a couple of days per month, half the school holidays, or a midweek supper, with their child. The cost (and I don't just mean financial) of litigation to these families is usually significant. Often it also seems wasted, particularly as it is widely accepted that (bar serious concerns about child welfare) spending time with both parents is of the utmost importance. To an outsider, it might seem a strange kind of madness given the protagonists are usually two caring parents, both of whom have a good relationship with the child.
Why then is there not a presumption by the Courts that when a family breaks down, the children should spend equal time with both parents? For example, why not have a starting point that children alternate between parents every two weeks? Or every month? I accept that in many instances this would be unworkable. In others, it would simply not be what either parent wants. But would it not be fairer that parties actively had to agree some different arrangement and that, in the absence of such agreement, it was necessary for a parent to apply to the Court to reduce this time? I am not suggesting this is the perfect or correct solution, but I would certainly like to see a move away from a system where committed parents are having to fight to spend a comparatively small amount of time with their children.
This blog is the beginning of a mini-series of blogs around parenting after separation or divorce. In future blogs, we will be covering the impact on the children and situations involving international aspects and relocation overseas. You may also be interested in reading our other recent blog - Divorce and separation – putting children first and how to support them
First published in Huffington Post, January 2016
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