I have children but I am just about to separate. Do I need legal advice?

If you and your ex-partner agree on all aspects of your children's lives, including where they are to live and the amount of time they are to spend with the other parent, the short answer to this question is you probably do not need legal advice. However, if you are not the birth mother, it is important to find out whether you have parental responsibility.

Parental responsibility is defined in section 3(1) Children Act 1989 as being: "All the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property".

In practical terms, when certain important decisions about the child's upbringing need to be made, all those with parental responsibility for the child are allowed to have a say in that decision. This includes but it is not limited to consenting to taking a child abroad for holidays or extended stays, deciding the child's education and where they go to school, consenting to a medical operation or certain treatment and deciding what religion a child will be brought up practicing. Birth mothers automatically have parental responsibility as do fathers who were married to or in a civil partnership with the birth mother. Parental responsibility is not lost if the birth mother and father get divorced. However, fathers who are not married to or in a civil partnership with the birth mother do not automatically have parental responsibility. They can obtain parental responsibility by:

1. Having their name registered or re-registered on the birth certificate of the child
2. Entering into a parental responsibility agreement with the birth mother;
3. Obtaining a parental responsibility order from the family courts;
4. Being named on a child arrangements order as a person with whom the relevant child is to live.

If you do not have parental responsibility and you wish to continue to be involved in your child's life, you should take legal advice. A lawyer can discuss the options available to you and advise you on the best route to obtaining parental responsibility.

If you both have parental responsibility and you and your ex-partner do not agree on issues relating to the children, it is important to get legal advice early on so that you can be informed about your rights and how to achieve the best possible outcome for you and your children as quickly as possible. There are many ways to work through disputed issues with an ex-partner and some of these are set out briefly below.

A lawyer can try to come to an agreement on your behalf by writing to your ex-partner setting out your proposals. If an agreement is reached this way, a lawyer can prepare a parenting agreement, which is sometimes referred to as a parenting plan. It is a written agreement between parents which can cover practical issues regarding the children such as living arrangements and when the children see the other parent. Parenting agreements are not legally binding documents. However, they are helpful as they set out the arrangements clearly if they are prepared well. The general idea is that if arrangements are set out ‘in black and white’ then they are less likely to break down and lead to disagreements. If the arrangements do break down and a court application needs to be made later on, a parenting agreement can also be a helpful way to clearly evidence you and your ex-partner's intentions at that time.

Another way to try to come to an agreement with your ex-partner is through mediation. Mediation is when separated parents try to agree on the future arrangement of the children with the assistance of a neutral and trained third party. Often, a mediator will also have a legal background. Mediation is voluntary and so both parties need to be willing to participate for it to work. If you are not comfortable sitting with your ex-partner, many mediators offer “shuttle mediation”, whereby you and your ex-partner will be in separate rooms. A mediator will take your proposals first then attend on your ex-partner in another room with your proposals in order to try to reach an agreement. Following the Covid-19 pandemic, many mediators also offer remote mediation. If you are able to reach an agreement during mediation, a mediator can draw up your agreement in a document called a “memorandum of understanding”. You should seek legal advice on this document before signing and agreeing to any final version. What is agreed and discussed during mediation is strictly confidential and will not be allowed to be placed before the court if court proceedings occur at a later stage. However, a lawyer can prepare a parenting agreement based on the memorandum of understanding. This parenting agreement can be disclosed to a court at a later stage if necessary and will have a lot of weight. There are other forms of mediation. For example, hybrid mediation, where one or both parents have a lawyer present for some or all of the mediation. Or mediating with the assistance of a family consultant. Family consultants have therapeutic backgrounds and can help couples navigate their way through separation, including dealing with the psychological and emotional impact of separation. A specialist family lawyer can discuss all the options with you and advise on whether mediation is appropriate and which type of mediation would be best in your case.

There will be instances when mediation is not appropriate. For example, if your matter is very urgent or if you are a victim of domestic abuse. Otherwise, before making an application to the court, you must first contact a mediator and arrange for a mediation information and assessment meeting, commonly known as a “MIAM”. The Court requires you to attend this meeting to show that you have at least attempted to resolve the matter without going to court.

There are other ways to try and agree issues relating to the children, such as a collaborative approach. In this process, both parents and lawyers commit to finding solutions without going to court and each parent will have a lawyer who is collaboratively trained.

There is also arbitration, which is similar to court proceedings but conducted privately. If separated parents really cannot reach agreement on an issue and they need a decision maker, they can jointly appoint an arbitrator, usually a neutral, independent lawyer who is qualified as a children law arbitrator. The arbitrator will listen to both parents’ arguments, consider the evidence and will make a decision on the issues in dispute. The decision of an arbitrator is binding, so it is important to get legal advice if considering this route.

Before trying to reach an agreement whether through solicitors, in person, through mediation or any other means, it is important to approach the issues in a child focused way and be guided by what is in the children’s best interests. Your children’s welfare will also be the court’s first consideration, above what you or your ex-partner want, on any application made in relation to your children. In general, it will be in a child’s best interests to spend time with both parents unless there are safeguarding issues whereby the child could be at risk of harm if they were to spend time with a parent. If you believe there are safeguarding issues, you should immediately seek legal advice about what to do going forward.

Of course, there will be instances where you will not be able to reach an agreement with your ex-partner or trying to reach an agreement without the court’s assistance will not be appropriate. If this is the case, you will need to make an application under section 8 of the Children Act 1989. Any court application should be a last resort as it is often expensive, time consuming and stressful. If you are thinking of applying to issue court proceedings, it is always better to get legal advice and representation as a solicitor will know the law and procedure. Therefore, they will be best placed to prepare your application and represent you so as to achieve the best outcome for your family. At court, negotiations take place before hearings outside the courtroom to identify if any further issues can be agreed between the parents before going before the court. If the hearing is remote, legal representatives will arrange a remote forum by which negotiations can take place prior to the remote hearing commencing. Having legal representation can help to reach an early agreement between you and your ex-partner if possible. If an agreement is reached at court, it can be drafted into a consent order and the court can make it a legally binding order. It is crucial that this document is drafted clearly and well. Having a lawyer to draft such an order is extremely helpful as they will have the relevant drafting skills. An order drafted vaguely at court can lead to disagreements in the future and the matter having to return to court at further expense to have issues clarified and the order re-drafted.

Please contact our family department should you wish to discuss any of the topics above with one of our specialists in the team, on 020 8290 0333 or email info@judge-priestley.co.uk to make an appointment.

For further information on our Family Law services, click here.

This article was first published in the book ‘Separating with Children 101’, edited by Only Mums & Dads. onlymums.org