father and son playing at home

In the continuation of our Private Family Law series, this article looks at the whether or not it is necessary to apply to the Court for an Order on divorce.

Do I need to apply to the Court for an Order?

In short the answer is no. I set out in the previous article the Children Act when introduced in 1989 changed the process whereby, for example, on divorce the Court had to make orders to determine the children’s arrangement, but section 1 of the Children Act specifically provides that the Court should not be making orders in regards to children unless they were necessary.

Arrangements where parents are in agreement

As a consequence of section 1 of the Children Act, parents who are in agreement regarding arrangements which should be put these into place for their children. Parents can simply get on and deal with those arrangements without the necessity of having this regularised through a formal Court process.

Instances where parents are in full agreement about the arrangements for their children do not tend to be cases upon which I have been invited to provide advice as there has been no need for engagement or either solicitors or the Courts.

Documenting an agreement

In some circumstances, however, where there may be some issues, it can be helpful for a written agreement to be considered and negotiated to address any matters of dispute and to have a formal document in place which both parties can then work to to avoid potential future dispute.

Even where this may not need a formal document I often advise clients that if they have a meeting with their other partner and reach an agreement that they should each then confirm what their understanding of that agreement is in writing, as I have often and regularly seen circumstances where in effect both parties have left a meeting believing something has been agreed but have different versions and understandings of what that agreement was.

Who can apply to the Court for an Order?

Perhaps controversially it is not always necessary for a parent who has the primary care of a child to make an application to the Court to resolve children matters even in circumstances of dispute.

If on a practical basis the child primarily resides with one parent who has the main practical control of the child’s day to day arrangement, where there is a dispute with the other parent or concerns which might require some conditions to be attached to the arrangement for contact, in effect those arrangements and conditions can be presented to the other party on basis that in effect it is a “take it or leave it” situation.

Should the other party then not accept the arrangements and/or conditions this may ultimately lead to a situation where the child is prevented from having contact with the other parent.

In reality the onus really falls on the parent who believes that their contact with the child is being unduly restricted or that unfair or unnecessary restrictions have been imposed to take the initiative and instigate proceedings before the Court.

In such circumstances given how long the Court process can take (see later) the general advice which I would provide to a parent in those circumstances is that no matter how unpalatable or limited the conditions might be or unpalatable the limitation of the time to be spent is, personal feelings need to be set aside and agreement reached to enable contact to take place (as it is generally always best for a child to be able to maintain and continue a relationship with a parent even in limited circumstances) whilst the Court is engaged to consider whether the extent of restrictions either in terms of time or indeed conditions are appropriate, unnecessarily onerous or indeed not required at all.

Putting it bluntly, it is always much easier when presenting a case to the Court to seek to vary the amounts of time and/or conditions that are attached to contact than it is to justify a resumption of contact where it has ceased. Particularly if the applicant’s parent has chosen to terminate their contact because they would not accept the limitations and/or conditions which might have been attached up to that point, putting their own feelings before maintain contact with their children.

 

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Private Family Law series

The next article in the series will address Is there a set level to contact? For more information on Private Family Court Proceedings and Misconceptions, please read these articles: