24 November, 2022
Making arrangements for children over the festive period can be difficult in separated families - here one of our Associate Solicitors, Sarah Robson, looks at the options and what can be done when an agreement cannot be reached. Sarah also looks at how to approach school applications when parents disagree over which school they would like their child to attend. For families who wish to send their children to a fee paying school, Sarah looks at how this can be funded.
Festivities are a special time for children; not just Christmas, but any special occasion that is celebrated by a family. Children want to enjoy the time without having the uncertainty of when or if they will see a parent, or being troubled by what the arrangements are going to be. This time of year can be stressful for families so making arrangements for the children in advance is beneficial. For families where parents have been separated for a number of years, there is often a routine in place for what happens each year, including school holidays, Birthdays, Mother's Day and Father's Day. However for families who are facing their first Christmas as a separated family there is no precedent to follow.
There is no legal formula as to what the arrangements should be. Some children enjoy two Christmas days - one with each parent. A lot of separated families alternate the arrangements on a yearly basis - one parent having care of the children from Christmas Eve until Christmas Day at lunchtime, then the children spending time with the other parent from lunchtime on Christmas Day until Boxing Day. This is then alternated the following year. This arrangement has the benefit of the children being able to spend time with both parents on Christmas Day. Undoubtedly parents need to compromise to come to an agreement.
If you are unable to reach an agreement, it is advisable to seek legal advice early so that solicitors can assist in trying to reach a compromise and have the arrangements clearly set out in advance. If it is still not possible to agree then parents can attend mediation to try and come to an agreement with the assistance of a trained mediator. There is usually a cost involved for mediation unless you qualify for an exemption.
Ultimately if an agreement cannot be reached, either parent would need to apply to court for a child arrangements order. This really should be a last resort - the family court services are very stretched and the court would expect to see concerted efforts by parents to agree arrangements for their children for such occasions. The court makes all decisions based on the welfare principle - what is in the best interests of that child? The court follow the welfare principle as set out in the Children Act 1989, but ultimately that Judge or the Magistrates hearing your applications make a decision based on what they believe is right for your children. These decisions are generally best made by the parents, who know their own children, rather than the court.
This time of year is also when some families are faced with the difficult decision of school applications. Secondary school application have already been submitted for children starting secondary school on 2023. Primary school applications close on 15th January 2023 for children starting primary school in September 2023. Even if your child is currently in year 5, you may already be thinking about which secondary school you would like your child to attend when they do so in 2024. If there is likely to be a dispute between parents it is as well to start the conversation now with the other parent, even though the application won't need to be submitted until October 2023.
The starting point when opening the conversation with the other parent is to acknowledge that this is a joint decision. Both parents generally share parental responsibility for their children. This means that they both have an equal input in decisions taken for a child of an important nature. It doesn't matter that the children might spend more time with one parent than the other - when it comes to decisions for the children they are to be taken jointly. For some parents the decision of which primary school to apply for is straightforward. It may be geographical considerations, or there may be another sibling at the same school. Alternatively parents need to consider the available schools in the catchment area and do some research. Schools open at this time of year for new parents to visit the school and speak to the teachers. It is wise to look at recent Ofsted reports and also look at the practicalities of each school and where both parents live. Select a shortlist and endeavour to have some constructive discussions together. If it becomes clear that an agreement is not going to reached then seek very prompt legal advice. As with most applications to court for children matters, you need to try and reach an agreement with the assistance of a mediator unless your application is of an urgent safeguarding nature. If mediation is unsuccessful you can apply to court for a specific issue order under section 8 of the Children Act 1989. Applications can be made without legal representation, however you may prefer to be represented in court. The application form (C100) can be obtained from the government website or from your local court. There is a court fee to pay.
In all cases where an application is made under the Children Act, your application is referred to Cafcass who undertake some initial safeguarding checks in respect of the children and then speak to both parties to understand the issues. Cafcass are the "Children and Family Court Advisory and Support Service". Their duty is to safeguard and promote the welfare of children going through the family justice system. Your case will be allocated a family court advisor (FCA). Your FCA will be asked by the court to compile a safeguarding letter. The FCA will undertake basic police checks and contact the relevant local authority to ascertain whether the family are known to the local authority. The FCA will speak to both parents to determine the issues. A letter will be sent by the FCA to the court ready for the first court hearing. The first hearing is known as the FHDRA (First Hearing Dispute Resolution Appointment). A member of Cafcass will attend the hearing which will either be heard by a District Judge or a Legal Advisor if your case is allocated to the Magistrates' Court. At the FHDRA the court endeavours to encourage the parties to reach an agreement with the support of Cafcass. However in applications that cannot be agreed at the first hearing it is likely that the court will require written statements before a further hearing can be conducted. If your application concerns schooling issues only then clearly you need to set out your position with relevant evidence to support your application. These are difficult decisions for a court to make as both parties may have valid positions, but again the court needs to decide what is in the best interests of that child - a question that is generally better answered by the parents!
Where parents are separated and one party seeks financial support to send their children to a fee paying school, or financial support to keep the children at a fee paying school, then it is a separate legal route that needs to be taken. It is not an application under section 8 of the Children Act as with the issues above. If parents are recently separated and have been married or are still married but going through a divorce then it is the rules of the Matrimonial Causes Act 1973 that apply. If a separating couple agree that one party will pay the school fees then this agreement is incorporated within the terms of a consent order that sets out the entirety of the financial agreement reached between the couple. There will be a specific clause within the order known as a "school fees order". If one party objects to paying the school fees then the Court will need to decide the issue during the financial remedy proceedings.
For couples separating who have not been married the Matrimonial Clauses Act 1973 does not apply. There is no provision for unmarried parents to rely on a school fees order. However they can make an application under Schedule 1 of the Children Act 1989. This section of the Act gives the court the power to make orders for financial provision for children. These applications are more likely to succeed if the child is already at a fee paying school at the time of separation. However the court has to consider the application based on the assets and income of the parties, and the needs and expectations for the child.
If you are considering one of these applications or concerned about how the ongoing school fees will be paid after separation then you will need specialist advice from a family lawyer.
For more information contact Sarah Robson in our Family/Divorce department via email or phone on 0333 207 1130. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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