The simple answer to this question is, unless there is a dispute between the parents as they separate, no – a Court Order is not required.
In fact, the Children’s Act 1989 specifically identifies that if parents are in agreement there should not be a Court Order. The Court are actively discouraged from making Orders unless they are considered necessary.
Consequently, parents can reach full agreements about the arrangements for their children, who they live with, how often they see the other parent and all other such arrangements without the necessity of a Court Order.
When might you turn to the Court?
It is only in circumstances where there is a dispute which cannot be resolved between the parents that a Court application may be necessary.
Arrangements for children
It is always far better for both parents and indeed the children if the parents can agree what the arrangements for their children will be. Once it is brought before the Court, it is the Court that will determine what is in the child’s best interest and that can on occasion mean the making of an Order setting out arrangements which neither parent particularly sought or wanted.
If the arrangements and agreements for the children are going to be reached in a face-to-face meeting, then I would always strongly urge and advise that shortly thereafter, each of the parents should put in writing what they believe that agreement to have been, as it is all too often the case that I have met with clients who have contended that there was an agreement only to find that each of the parents have legitimately misinterpreted or misunderstood what the other might have been saying and have a completely different view as to what the agreement actually was that they left that meeting with.
In addition, if an agreement is reached, it may be useful for this to be placed into a “parenting plan” (and I will look at, in a further Article, parenting plans and what might or might not be incorporated therein).
If full agreement in respect of every matter cannot be secured, it is still better, if at all possible, to have agreed as much as possible as then any Court process which might be necessary can focus on the matters of disagreement and generally therefore will mean that the proceedings are less traumatic to the parents, quicker, shorter, more focused and therefore usually cheaper.
Options outside of the Court
In the event that agreement cannot be reached, other options outside of the Court process might be a) inviting a neutral respected third party to assist in negotiations, b) referral of the matter to a formal mediation service (see later Article) or indeed (c) the engagement of solicitors to undertake discussions and negotiations on behalf of the parties.
It should only be as a last resort that Court proceedings are instigated to resolve matters which cannot be agreed.
If you have asked any questions relating to children agreements and would now like more information of the different kinds of proceedings relating to children, please get in touch with our Family Team and we would be happy to assist you.
This article is part of a series on Private Family Law and Children Law proceedings. If you would like to learn more about the rules around parental responsibility, contact, holidays and arrangements for separated parents, please click here for the full series.