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Child Custody FAQs

Do fathers ever get children living with them?  

Over the last fifteen years there has been a societal shift in relation to mothers working longer hours or full time and fathers working from home.    As a consequence, the courts are more and more looking to their being a shared regime or have been more open to granting orders whereby children live with the fathers if the father is capable of meeting the children’s needs under the criteria set out in the Children’s Act.  Every situation will of course be determined on its own facts, but more and more a father who has parental responsibility ie he is named on the birth certificate or has acquired parental responsibility by agreement, has a prospect of making a successful application for a lives with order in circumstances where the court believes on the evidence before it, that the making of such an order would be in the best interests of the child or children of the family.  If a father believes that he is more capable of looking after the child than the mother and can provide for the child’s needs, then we would suggest that they take advice on the suitability of the application so that it is structured in a sensible way so that it is not bound to fail from the outset.   It should be noted that such application should not be peppered with over criticism of the mother since if a Judge feels that there cannot be any kind of co-parenting the application will be bound to fail.

How long does it take for a judge to decide issues of where a child lives?

The issue of how long it takes for a Judge to determine the issue of where a child should live and with whom is very much dependent on the circumstances of the case, the workload of the court in question and the complexities of each case.  If there is a dispute regarding where the child should live, there are a few preliminary hearings that must be worked through first and if there are allegations and counter allegations, then this could necessarily involve not only the appointment of a Cafcass Officer ie an officer from the Children and Family Court Advisory Support Service, buy also what is known as a “Fact Finding Hearing” where the court can determine whether the facts being relied on by each of the parties are true.  What is vital in a case of cross applications is for the court to be certain that safeguarding issues are carefully worked through for the safety of not only the child but also of the other parent if domestic violence issues are raised.  The Cafcass Officer will have to consider safeguarding issues and provide a safeguarding letter and at the preliminary directions hearing Cafcass may be further involved in preparing reports and being directed to court attendances.  On average there are at least two hearings but the number is dependent on the circumstance of the case, and also the allegations made.  Sometimes there is a request for hair strand testing, blood tests or urine tests if there are allegations or counter allegations of drug or alcohol mis-use.  There may be directions for the production of psychiatric reports on either the Applicant or the Respondent, or psychiatric reports on the effect of the child living with either of the parents.  All of these issues can lengthen the period of time and some of these cases can take up to a year with the attendant costs.

Can a father be denied a live with or spend time order?

Either party can affectively be denied a live with or spend times order if the evidence put before the Court shows unequivocally that it is not in the best interests of the child to live with or spend time with that person.  If that is the case then an order can be made for the child or children to live with their mother or a suitable guardian.  If there is a suggestion that the father will place the child at risk, an application can be made for a prohibited steps order which can prevent the father spending time with such time or children, but the evidence will have to provide clear unequivocal evidence that the father would put the child at risk.    The attitude of the courts these days is to ensure that both parents can see the children.

It is vital to consider in any of these kinds of applications Practice 12J of the Family Procedure Rules which now governs these kinds of situations.  For the sake of prudence I attach the crucial wording:  https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_12j

How does a mother lose a live with application? 

The deciding factors relating to applications made for a live with order apply regardless of whether the application is made by a mother or father.  For a mother to lose a live with application, the court would have to consider that the child’s best interests are not served by living with the mother.  The welfare of the child or children are key and the court may well involve third party experts to assist us in coming to a balancing form decision whether that is the involvement of a Cafcass Officer ie the Children and Family Court Advisory Support Service, a psychiatrist, a psychologist, evidence from the parties, or an independent social worker or guardian on behalf of the child.  Even if a mother loses a live with application it does not mean that she will lose all rights to see the child but if there are welfare concerns and safety concerns, the court could put in place supervised provisions.  This will mean that the mother would only be able to see the child if the child is in the country of a third party which can involve another family member, or someone specifically appointed by the court.  At times that can be a social worker.

How do you prove a parent unfit to look after a child?

There are many kinds of applications that are made that touch on whether a parent is unfit to look after their child.    This can arise when there is an application for a live with order or any kind of child arrangement order or any kind of child arrangement order.  In order to demonstrate that the other party is unfit you would need to provide cogent evidence of a history of drug or alcohol abuse that would render that parent incapable of proper care of the child.  Alternatively, if there is a history of domestic abuse either physical or emotional either to the other parent or more importantly directly towards the child, or the parent has a history of mental illness that could incapacitate the parent to look after the child adequately or at all.  Because in divorce cases motions are often brought into play and in many cases parents can parent in different ways or have different views of what is best for their children, allegations about the other party’s ability to provide the care often raised.

Allegations and counter allegations are often thrown about during this process and the court may look to the following: –

  • Safeguarding issues ie they may look to Cafcass or other organisations to provide details of whether there is any danger to the child or children; or
  • May bring in psychiatric assessment of either the person who is being accused of being an unfit parent or of the child themselves

Always be aware that if allegations are made that are not substantiated, and if those allegations are demonstrated to be viscous, malicious and intended to cause harm themselves, this could result in the parent making unfounded allegations having to pay the costs of the proceedings.    Alternatively, if allegations are made and are substantiated criteria will be put in place to protect the other parent if there has been ongoing domestic abuse and/or the child.

Sometimes being unfit can be a complete lack of understanding of the needs of the child in terms of how they are fed, educated or cared for generally.  The Court may send that parent to a parenting educational course as opposed to banning them from looking after the child altogether.  If a parent is unable or unwilling to discipline the child to the extent that they are out of control, again this could allow the other parent to apply for a live with order.  Sometimes if the conditions in which a child is living is entirely squalid or unsafe, or there has been a history of criminal offences or imprisonment or an entirely negative attitude of unwillingness to live that parent, the Court will make orders accordingly.

Take care, in making serious allegations, if you yourself are unable to look after the child or children could end up in care.

Can a mother legally keep her child away from the father?

If a mother believes that her child is in danger, either from domestic violence, or she her self is at constant threat of domestic violence, then under Practice Direction 12J of the Practice Directions Rules a court can keep the child away from the father.  There would need to be very strong evidence of this and the parties would have to go through a first hearing or FHDRA (First Hearing Dispute Resolution Appointment) followed by directions and this might include a fact-finding hearing.  There would be reports ordered for Cafcass officers to provide the report under Section 7 to deal with any risks or potential harm to the child.  The child can be heard and if necessary, the court can appointment a guardian to express the wishes of the child.  The Court must at all stages of the proceedings and specifically at the first hearing consider whether domestic abuse is raised as an issue either by the parties or by the Cafcass Officer or otherwise.  You must identify at the earliest opportunity the factual and welfare issues involved, consider the nature of any allegation, admission or evidence of domestic abuse and the extent to which it was likely to be relevant in deciding whether to make a child arrangement order.  The Court must give directions to enable contested relevant, factual and welfare issues to be tried as soon as possible and fairly and must ensure that where domestic abuse is admitted or proven, any child arrangement order in place protects the safety and well being of the child and the parent with whom the child is living and does not expose either of them to risk or further harm etc.

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