Sharing the care of children – a study of child care cases in the Courts

A recent study, supported by The Nuffield Foundation and carried out by experts from the Universities of Reading and Warwick, looked at decisions reached by the County Courts in England and Wales in child care cases. The purpose of the project was to analyse applications, to look at how the Courts reached their decisions and to identify the different types of arrangements agreed by parents following a separation. In this week’s column, we look at the issues raised and discussed by the study.

Do the Courts favour mothers or fathers?
Central to the project was to look at whether any gender bias was shown towards either parent in a child care case. Interestingly, and perhaps contrary to public opinion, the study found that no bias was shown in deciding where a child should live.

When making applications to Court for contact, mothers are often the primary care giver. However, the study found that the success rate for mother and father applicants is broadly the same so fathers should not be deterred from making an application on the assumption that they won’t be successful.

The Courts do not tend to transfer children from one main residence to another; their primary role is to protect and retain consistency for children. A Court will generally only transfer a child’s main residence to that of the other parent if there is a serious concern for the child’s welfare or where children’s services are involved.

Do we have to go to Court for a decision on child care?
The study found that the majority of cases which proceeded to Court were those where private negotiations between parents had broken down.

Cases will only go to Court if they cannot be settled through agreement between themselves, solicitors or mediation. Mediation is a more informal process which allows parents to talk, either face-to-face or through a trained mediator, and come to agreement about their children and other matters affecting their separation. Mediation is much cheaper and less stressful than going to Court and it is now compulsory to participate in mediation as part of any child and financial-related process. Court should always be only a last resort.

Going to Court doesn’t need to increase tensions between parents; generally, cases assessed as part of the Nuffield Foundation study were settled by consent and the Courts can help to resolve disputes sympathetically by introducing a gradual series of hearings to increase conversation and aid agreement.

Do the Courts encourage contact in domestic violence cases?
Where there is evidence of domestic violence in a relationship, the project found that the Courts still encouraged as much contact with both parents as possible. Contact with the non-resident parent could be gradually increased over time to allow both parties to build trust, eventually allowing the child to stay with the non-resident parent overnight.

Only in cases where there is a very real and serious risk to a child’s safety will a Court make a ‘no contact’ order. Logistics and practical concerns meant that, in the most part, equally-shared care tended not to be ordered. It is thought to be more stabilising and simpler for both parents and children to have a main residence and a non-resident parent with contact.

What about grandparents who want to care for their grandchildren?
In some cases, grandparents (or other carers) may wish to apply to Court for a child care order concerning their grandchildren. The Nuffield study report states that, ‘These types of cases have been overlooked in the Family Justice Review and recent legal reforms.’ Rather than being dealt with as a typical family law dispute case, these cases tend to be administered differently.

Is Legal Aid available?
Unfortunately, Legal Aid is only available now in a minority of cases and normally to protect vulnerable parties where there has been domestic abuse.

It is felt that there may be a risk to children where parents or other applicants are unable to benefit from Legal Aid, as parents or carers who cannot access the Court system may agree to arrangements which are not safe for the children or may not be able to reach any agreement at all, meaning that some parties could lose contact with children altogether. The report raises the concern that those who are particularly vulnerable, such as parents battling addiction or suffering from poor health, may be unable to receive a fair hearing.

McCarthy Bennett Holland offers FREE 30-minute, no-obligation, initial appointments for all family and matrimonial cases. To arrange yours, contact family & matrimonial specialist Gillian Lavelle on 01942 206060.