People still speak of a so-called ‘quickie divorce’ which never was a thing, other than an erroneous tabloid headline. In connection with their finances, they fear being ‘taken to the cleaners’, despite the fact that the role of the Family Court is to identify a ‘fair’ outcome. And, in relation to their children they still refer to ‘custody’ and ‘visitation’ which is perhaps an unhappy side-effect of too much US television drama, these terms having, rightly, been replaced in this jurisdiction by less prejudicial labels such as ‘lives with’ and ‘spends time with’. The Australian family justice system has long used the phrase ‘parenting time’ which is both succinct and apposite as well as being appropriately neutral.
Equally, and perhaps understandably, many individuals think that the terms of a co-parenting agreement will somehow be binding on them and on the other parent of their children.
The reality, as per the HM Government website, is that if you divorce or separate “you do not have to do any official paperwork if you agree about child arrangements”. In other words, the Family Court does not require separating parents to enter into a co-parenting agreement.
The advice on the Gov.UK website goes on to say that “you can write down what you’ve agreed in a Parenting Plan if you want a record”. The hyperlink takes the reader to a page on the Cafcass website called Planning Together for Children. Cafcass is an acronym for the Children and Family Court Advisory and Support Service who, in their own words:
“…represent the interests of children and young people in the family court. We independently advise the family courts about what is safe for children and in their best interests. We focus on their needs, wishes and feelings, making sure that children’s voices are heard and are at the heart of the family court’s thinking and decision making”.
It should be noted that Cafcass will usually only be involved with decisions surrounding children’s welfare and living arrangements if there are contested proceedings in the Family Court.
The Gov.UK website advises parents that if they “want to make [their] agreement legally binding, a legal advisor can help with the paperwork”. This is rather obtuse shorthand for enshrining the terms of an agreement in a draft consent order for approval by the Court. But, unhelpfully, what is not clear from this resource is that as a matter of law, the Family Court will only make an order for a child if this is better for the child than not making an order. This is called the ‘no order principle’ (as per s1(5) of the Children Act 1989). And so, despite what appears on the face of the Gov.UK website, the reality is that the Court will not necessarily endorse all applications to enshrine a parenting plan into a consent order as it is likely to take the view that if the parents are agreed there is therefore no need for an order.
It follows that parenting plans or agreements are usually voluntary arrangements made between divorced and/or separated parents and they are not binding. What then constitutes a parenting plan?
Cafcass tell us that it is “a written agreement to support a co-parenting approach that covers the practical issues for your child”. They also suggest that “it works even better if you involve your child” although some may say that this is perhaps idealistic and in reality much will depend on the age of the child and (perhaps more importantly) the manner in which the parents – separately and together – seek to involve the child.
Typically parenting plans will address, in varying degrees of detail, a child’s living arrangements; in other words how they share their time with each parent both during term-time and in the school holidays. They may also include arrangements for so-called indirect contact such as telephone calls, FaceTime and the like. Arrangements for travel and special days such as Christmas, birthdays, Mother’s Day and Father’s Day will be agreed and recorded. Children generally benefit from predictable and regular routines.
But to be clear, whilst such arrangements may usefully be recorded in a written agreement, they are not binding on either party and nor do they displace the general law in relation to what is known as Parental Responsibility. Put simply, Parental Responsibility is the bundle of legal rights, responsibilities and authority over a child and their property. Mothers automatically acquire Parental Responsibility on the birth of the child. A father will acquire Parental Responsibility if he is married to the mother at the time of the birth and/or if he is recorded on the child’s birth certificate (it is also possible to apply to the Family Court to be granted Parental Responsibility).
It is important for divorced and/or separating parents to understand and appreciate that irrespective of how their child’s time may be divided between them ‘on the ground’ they do both continue to share Parental Responsibility. And, when a child is in the care of a parent with Parental Responsibility that parent may, of course, may make day-to-day decisions relating to that child’s welfare; for example arranging routine medical care and the like. But, so-called ‘big ticket’ items such as decisions over a change of name, schooling, non-routine medical treatment, religious upbringing and removal from the jurisdiction must all be made in consultation and if not agreed by the parents determined by the Family Court. In this context it is important to know that as a matter of law, each parent with Parental Responsibility must seek the written consent of the other before travelling with their child out of the jurisdiction (unless one parent benefits from a so-called ‘lives with’ order). All of these matters may be addressed and recorded in a co-parenting plan, but what is important to appreciate is that such plans must inevitably benefit from flexibility as children grow older and circumstances change. A child’s living arrangements cannot be set in stone and parents must accept that it is likely to be in the child’s best interests for there to be an appropriate degree of give and take with one another. Above all, their child’s time should not become an accounting exercise. When a child reaches 18 she is unlikely to judge the value of her relationship with her parents by counting the number of nights she spend with each of them during the school summer holidays.
As for the question posed above, it will be understood that the Court will only be involved if the parents cannot otherwise agree. And, as a result of recent procedural changes the Family Court is now proactively expecting and encouraging would be litigants to explore so-called Non Court Dispute Resolution as a prerequisite to making applications for orders, including (save for a narrow range of exceptions) attending a Mediation, Information and Assessment Meeting to explore the possibility of whether it is possible to resolve matters with the assistance of a mediator.
And, even when proceedings are under way, the Court will, where appropriate, encourage parents to work together with a view to prioritising their children’s needs. For a number of years, the Family Court directed litigating parents to attend a Separated Parents Information Programme (SPIP). But, the SPIP which was a one-off four hour course, has since April 2023, been replaced by Planning Together for Children which is a three stage process including online self-learning around parental dispute and its impact on children; a group workshop; and a supplementary online parenting plan.
At the outset of an application, as part of their so-called safeguarding report, the Cafcass Family Court Advisor may now make a request to the Court that the parents attend a Planning Together for Children course. And, even once an application is before the Court, the Family Court may require (i.e. make an order) the parents to attend such a course within the context of the proceedings with the hope that a consensus may be reached and the contested litigation be concluded.
And so it may be seen that via the Family Court, help is now available to separated parents to improve their ability to co-parent and to avoid the financial and emotional costs of Court proceedings around their children’s welfare and living arrangements.
But, yet it must also be remembered that there is a limit to what the Family Court can do in relation to such intensely personal matters and as Mr Justice Cobb said as long ago as 2015 “the Family Court cannot work miracles”. It cannot, he said, “change personalities” and it “cannot change the way people function as people”. For that, the individual must be willing to change. And so (where appropriate) by directing parents who might otherwise find themselves embroiled in litigation to educate themselves and endeavour to work together in the best interests of their children, it must be right to say that the Family Court is playing a role in support of meaningful co-parenting arrangements.
At Payne Hicks Beach, our expert family law team understands the complexities of blended families, co-parenting, and financial arrangements. We can advise in relation to the range of options available to help you reach fair solutions without lengthy court battles. Whether it’s creating child arrangements or resolving financial matters, we guide you through the process with sensitivity. Our team can also assist in managing stepparent relationships and establishing clear roles, ensuring your family’s well-being is prioritised.
For further information, please contact Matthew Booth, Partner in the Family Department or, alternatively, telephone on 020 7465 4300.
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