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THE SPLIT – A SPECIALIST FAMILY LAWYER’S REVIEW OF SERIES 2, EPISODE 4

In this week’s episode, Fi and Richie Hansen attend a roundtable meeting (a meeting with lawyers present) to discuss each parent’s proposals for child arrangements. Richie, having moved out of the family home and into a hotel, is proposing a 50/50 shared care arrangement. Fi does not agree to that and proposes that their children spend time with Richie on every third weekend.

In this blog, I examine the basics of children law and how it might apply to Fi’s and Richie’s circumstances.

Parental responsibility

Assuming Fi and Richie were married when the children were born, they will both share parental responsibility for their children. Parental Responsibility is defined in the Children Act 1989 as all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child and his property.

Fi and Richie must consult each other in relation to fundamental decisions about the children’s care, particularly in relation to health, education and welfare. It also means that neither parent can take the children out of the jurisdiction of England and Wales, even on a temporary basis, without the agreement of the other. If they did, they would be committing an offence under the Child Abduction Act 1984.

Powers of the Court under Section 8 Children Act 1989

The Court has a number of powers under Section 8 of the Children Act 1989. The Court can hear applications and make orders in relation to:

  • Specific issues (e.g. the children’s schooling).
  • Parenting time.  This means that if Richie and Fi are ultimately unable to agree the division of the children’s time between themselves, the Court can deal with this issue.
  • The amount of time the children reside with either parent.
  • Prohibited steps orders, namely orders forbidding either parent from taking any specific steps in relation to the children.

In accordance with the Children Act, the Court generally does not intervene unless it feels that it would be in a child’s best interests to do so.  If the Court does intervene, it will regard the child’s welfare as the paramount consideration and will apply the welfare checklist.  The factors that the Court will consider are as follows:

  1. The ascertainable wishes and feelings of the child concerned
  2. The child’s physical, emotional and educational needs
  3. The likely effect on the child of any change in their circumstances
  4. The child’s age, sex, background and characteristics which the court feels are relevant
  5. Any harm which the child has suffered or is at risk of suffering
  6. How capable each of the child’s parents are in meeting the children’s needs.

Fi and Richie’s proposals

There is very little detail given in respect of either parent’s proposals for the children. The children appear to be of primary school/early secondary school age, and so the Court, if involved, would give some weight to their wishes and feelings.

Richie seeks a shared care arrangement, but what does this mean in practice? Shared care does not necessarily mean that each parent spends equal time with the children.  It just means that they have a right to live with or spend time with both parents.

Ultimately, the arrangements for the children will be dictated by the practical realities on the ground, factoring in the children’s routines and each parent’s respective work commitments. Unless Richie can implement changes to his work schedule that enable him to be able to care for the children to the extent to which he is proposing, I would be concerned that his proposal lacks child-focus and would not work in practice. In which case, this would not be suitable for the children in the long term.

As for Fi’s proposal that the children spend time with Richie on every third weekend, this would presumably represent a significant decrease in the amount of time the children have spent with their father to date. I think there is scope for Fi and Richie to compromise in an effort to reach an agreement as to an arrangement that puts the interests of the children first. Richie seems quick to resort to Court proceedings, but perhaps they can consider mediation first. I doubt they will, as this would make for less interesting telly, but in the “real world” mediation is certainly an option I would be discussing with my client.

If you would like to speak to a family law specialist about any of the issues raised in this blog or featured in The Split, please get in touch.

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