Children in divorce (2)

Sometimes one parent does have to make an application to the court to decide an issue relating to one or more children of the marriage. In England this could be about the residence or custody of children, access to or contact with children or to determine a specific issue such as whether the child should have certain medical treatment. Such applications are always something of a last resort. As we have said, disputes about children are not uncommon when a relationship breaks down but it is important to emphasise that most couples do make perfectly satisfactory arrangements which work very well without any assistance from anyone. This is the ideal situation and it is what happens in most divorce cases. Indeed, there is an inbuilt bias in favour of the courts not intervening because section 1(5) of the Children Act 1989 reads:

“where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.”

Sadly, agreement is not always possible and the matter becomes contentious. Sometimes the reasons for this are misguided and one (or both) parties are using the children to get at one another. On other occasions there are very real causes for concern as to the well-being of the child and so court action becomes unavoidable if the parties concerned cannot come to an agreement and one of them feels strongly enough to make an application to the court. If you need to know about the procedure involved in making or responding to such an application then click here. It is fair to say that the courts do usually regard imposing a solution in respect of children as a last resort and they will try to encourage the parties to resolve their differences by conciliation if at all possible.

In many courts, for example, it is a matter of routine for the parties to meet with a Conciliation Officer on a confidential basis to see if agreement can be reached before any court action goes forward. If questions of residence and\or contact have to be decided by a court then there is one over-riding principle which comes before all others: the court will make its decision in the light of what it considers to be the best interests of the child.

There are other factors, of course. For instance, if a teenage child is resolutely opposed to contact with one parent then a court is very unlikely to make an order which has little chance of being obeyed. With younger children the wishes of the child are taken into account depending on age but they are not decisive in themselves. Generally speaking, a court will consider contact with both parents to be in the interests of the child and it is very unusual for, say, a non-custodial parent to be denied contact with the child. There would have to be quite unusual circumstances for such an order to be made.

In practice, although the test of what is in the child’s best interests seems simple enough, if one parent seeks to prevent the other having contact at all then legal advice is almost always necessary. Click on practical considerations for more detailed information on why this should be so. Another point which it is probably worth mentioning because it is raised so often is the fact that there is no connection between whether the absent parent pays maintenance and whether contact is allowed. Contact is decided on the basis of what is in the best interests of the child and that is not necessarily dependent upon whether the absent parent pays maintenance. Many people regard this as unfair but that is the rule. They are two separate and legally distinct issues.

There are also specific issues about divorce of concern to men in particular to which it is wise to pay attention  if the father is not to come out of the process feeling aggrieved. This can particularly apply to the outcome in relation to children. Almost all disputed cases involving contact or residence are difficult and there is often no one right or wrong answer. For that reason it is probably very important to take professional advice if one finds oneself in this situation.


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