The season of goodwill
The festive period is for many families the highlight of the year. Visits to relatives, Christmas presents and seasonal parties. Whilst the traditional Christmas is the aim for many, this time of year ushers in the family dispute season, culminating with “Black Monday” being the first Monday after New Year when traditionally more than half the people who plan to divorce will start the process by consulting lawyers.
Whilst most divorcing couples agree that their relationship is at an end, there remain ongoing issues surrounding the children. These tend to fit into two categories being – what contact will the absent parent have (if any)? And how much will the absent parent pay for child maintenance? In the UK, the Courts do not really want to become involved in either of these issues unless absolutely necessary and the separating couple are encouraged to resolve matters between themselves.
When it comes to child contact, if you really cannot resolve matters amicably, it is possible to ask the Court to intervene. Such intervention is however, tackled by the Courts on the basis that the parents are encouraged to talk to each other. At the heart of any case is that the children’s welfare is paramount. There is therefore a presumption that the Court should not interfere in existing arrangements nor make any Court order as this will lead to inflexibility with arrangements. The Court will therefore firstly invite the parents into Court for a discussion to see what the problem is. The Judge will speak to both parents and see if they can resolve the contact problem there and then. Parents who are being inflexible, or just plain spiteful will get short shrift. At the end of the day, children have a right to contact with both parents unless there is a compelling reason to withhold that right. If this meeting is not successful, the Judge will direct the parents to attend parenting classes and/or medication to resolve the dispute that way. Only as a very last resort will the Court make a formal judgment about the arrangements, and even then, probably after another informal hearing to try and reach consensus.
One issue worth mentioning is that divorcing your partner and having day to day custody of your children does not in itself withdraw any rights from the absent parent. Again, this is something the Courts will not interfere with unless absolutely necessary. In practical terms either parent has full rights were the children are concerned and do not require the permission of the other for decisions such as where to school the children, whether to consent to medical treatment, take the children abroad, etc. The Courts will only interfere in these practical matters as a last resort and where that is in the best interests of the children. Again, the starting point is the Court will expect the parents to agree matters between themselves.
When it comes to child maintenance, again the starting point is to try and agree matters with the absent parent. Where both parents are resident in the UK there is absolutely no need to ask the Court to set the level of or enforce any agreement about child maintenance. Instead, there is a government agency called Child Maintenance Options which is entrusted with resolving such disputes and collecting money from the absent parent. This agency is free to submit a case to (unlike the Courts) but will take a slice of recovered monies to cover running costs. If you do not proceed via the agency, the Court will likely want explanation for why this is and will probably set the level of maintenance in accordance with the matrix that the agency provides anyway. Moreover, once you have a Court order you have the problem of then extracting money (the two events do not go hand in hand unlike with the Government agency that takes over collection as well as assessment). If the absent parent is abroad, you can ask the UK Courts to assess maintenance, but then have the problem of enforcing via the Courts of the country where the parent now resides. Going down this route can be time consuming and expensive.