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Children after divorce or separation (continued)
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If an application to Court is necessary, the Court will consider a checklist of factors when deciding what an appropriate Order would be. Its primary concern would be the child’s welfare.
Thereafter the Court would consider:
- The wishes and feelings of the child (considered in the light of his/her age and understanding)
- His/her physical, emotional and educational needs
- The likely effect of any change in his/her circumstances
- His/her age, sex, background and any characteristics which the court considers relevant
- Any harm which he/she has suffered or is at risk of suffering
- How capable each of parent is of meeting his/her needs.
An independent Child and Family Reporter (known as a Cafcass officer) may be asked to help you resolve the dispute or to help the court decide. The court will not make any order relating to a child unless it is satisfied that making an order would be better for the child than not making an order.
Most family disputes can, however, be resolved without using the courts and we can help you to make suitable arrangements while ensuring that the welfare of the children comes first.
Financial Issues relating to children are also likely to be a factor to consider. Child maintenance is the standard way to deal with these issues. There is a Government formula for assessing maintenance, utilised by the Child Support Agency. The assessment will be reduced down depending on the number of nights the children stay overnight with the non resident parent. There will be no reduction for overnight stays of less than 52 nights a year. There will be a one-seventh reduction for overnight stays of between 52 and 103 nights a year and a two-seventh reduction for overnight stays of between 104 and 155 nights. This continues to an even division in respect of child maintenance responsibilities.
There is no compulsion upon either parent to apply to the Child Support Agency for an assessment unless the non resident parent is in receipt of income support. Maintenance can be agreed with your partner to avoid the necessity of involving the Child Support Agency. However, it is worth noting that as part of divorce, nullity, judicial separation or dissolution proceedings the Court can approve a maintenance agreement. After a 12 month period either parent can apply to the agency in any event for a further assessment to be carried out.
There are also potential claims available for the benefit of the children, under Schedule 1 Children Act 1989. These include property adjustment or settlement, lump sum payments and periodical payments. Usually property exchanged under a property adjustment order would revert to the settlor once the child had reached eighteen or finished full time secondary or tertiary education. It would therefore been seen as a ‘forced investment’ for the parent for the benefit of the child rather than an outright payment to the other parent.
To properly advise in respect of what either a realistic Order under this Schedule would be will usually require full and frank financial disclosure.
Carla Hull Solicitors Limited has extensive experience in advising parents regarding all legal issues relating to their children and we can help you focus upon achieving the best possible outcome for your individual family.