Child arrangements on separation: what to expect at your first meeting

The aim of this article is to set out in broad terms topics that may arise in an initial meeting with a solicitor regarding child arrangements following separation. No two families are the same; even though on the surface your family may seem similar to your friend’s or your neighbour’s there will be details that can make a difference to the advice you receive. This is because the law in this area is discretionary and in order to provide tailored advice your solicitor will need to explore your individual circumstances and those of your children.

It is often helpful to start with why you are looking for advice at this stage. Whether you have recently separated from your children’s other parent, are considering a potential separation, or have run into difficulties some years after a separation, this information will provide a useful lens through which your solicitor can consider the current position.

It is also important for them to understand the nature of your relationship with the other parent as this may affect the extent to which you need or want professional involvement. It may be that you and your co-parent manage the day-to-day arrangements well but you would like advice in the background about how to resolve a specific disagreement. Alternatively it could be that communication has completely broken down and that you want your solicitor to take a more direct role in helping you to resolve matters. An effective strategy will need to take into account the dynamics of your relationship but ultimately your solicitor will be guided by how you want to proceed.

Arrangements for children are centred on their welfare, meaning what is in their best interests. Your solicitor will therefore ask you some detailed questions about each child in order to understand the factors that feed into this as well as the wider circumstances. These are likely to cover at least some of the following:

• Personal details. What is their age, sex and background? Do they have any particular characteristics your solicitor should be aware of, including any particular physical, educational and emotional needs?
• Capability of each parent to meet those needs. This is not because your solicitor is questioning anyone’s ability to parent. It may be there is some aspect of a parent’s life or circumstances, such as their work schedule, that means that certain arrangements are more or less likely to be suitable from a practical perspective if nothing else.
• Harm or risk of harm. In a similar vein, this is an exploratory question rather than an accusation. If anything is relevant in this regard it is important that your solicitor knows so that it can be factored in to their advice.
• Wishes and feelings of the child. This is not because your solicitor wants your child to be drawn unnecessarily into a dispute between their parents and it is entirely natural to want to shield them from this. However, their thoughts on the arrangements are a relevant factor and the weight given to their wishes and feelings increase with their age and understanding. There are a number of ways in which children’s views can be canvassed in an age-appropriate way including, for example, child-inclusive mediation.
• Financial arrangements. Either following divorce or separation. Is one parent making payments to the other for the child’s benefit? What is each parent’s housing situation? Although it is best practice for practitioners to maintain separation between finances and child arrangements, there is a degree of interplay.
• Schooling. Are there any decisions to be made in the near, or distant, future? Is there agreement about this or is there potential for a dispute? This can be particularly relevant where school fees are a consideration.
• Connections elsewhere. Either internationally or within the jurisdiction. If one parent wants to move away this could have big implications for the child arrangements.

Your solicitor will also explore with you different options for resolution. These can include direct discussions, mediation, solicitor-led correspondence and court proceedings. Some parents may come into the meeting feeling like they want the certainty of a court order and in some cases issuing proceedings is unavoidable. However, you should not be discouraged if your solicitor talks to you about other options; it isn’t because they think your case is unimportant or not worthy of court time. It reflects the legal principle that a court will not make an order in relation to a child unless doing so would be better for the child than making no order at all. Furthermore, the reality is that pursuing a contested application in an under-resourced court system beset by delays is in many cases not in the interests of the child at the heart of the dispute.

Some of these questions at first glance may not seem applicable to your circumstances, but giving them some consideration in advance of your meeting may highlight some detail that you may not otherwise have thought relevant. You may wish to prepare some notes or questions and this can help you to feel prepared for the discussions with your solicitor. If they have an understanding of how the above factors apply to your children’s circumstances they will be in a better position to provide specific advice that focuses on your children’s interests.