If all else fails, then the only option is to consider a court application. This is expensive, stressful and unpredictable, and should always be the last resort.
How the court decides
In all applications regarding children, the welfare of the child is always paramount. In deciding what is in the best interests of the child, the court will consider the following checklist:
- The child’s wishes and feelings in the context of his/her age and understanding.
- The needs of the child.
- The effect any change in circumstances is likely to have on the child.
- The child’s age, sex and background.
- Any harm the child has suffered or is at risk of suffering.
- The capability of each parent of meeting the child’s needs.
The court procedure
This is a typical child application from issue through to trial:
- Applicant issues application by filing form CF1 at court, serving on the other party and copying to the Family Proceedings Advisory Service (FPAS).
- Application is listed before the court, and parties and FPAS attend directions hearing. Consideration is given to, inter alia:
- Whether FPAS should be appointed.
- Whether statements should be filed.
- Interim contact arrangements.
- Any allegations of domestic abuse.
- Timetabling the case through to trial.
- Position statements are filed, if required.
- Finding of fact hearing takes place, if relevant.
- FPAS undertake a full investigation and will meet the parties, meet the child (if appropriate) and contact all relevant agencies, such as the police or HSC.
- FPAS report is filed at court and sent to the parties.
- Final directions hearing takes place.
- Final hearing takes place. Parties and witnesses attend and give evidence. The court decides the application, taking into account the welfare checklist.
Applications can be brought in either the Royal Court or the Magistrate’s Court.
The main law governing children in the Bailiwick is the Children (Guernsey and Alderney) Law, 2008. This legislation sets out the general principles and provides a comprehensive ‘welfare checklist’, listing the main factors that will be considered by the court when making a decision about children.
The 2008 Law empowers the court to make a range of orders, including the following:
- Parental responsibility
The Law defines parental responsibility as all the rights and obligations involved in the raising of a child. In practical terms, parental responsibility requires each parent to be consulted and to consent to all major decisions relating to a child’s upbringing, for example, change of name, consent to medical treatment, schooling, removal from the island.
A residence order confirms where the child will live. A sole residence order confers custody to one parent, whereas a shared residence order confirms that the child will divide their time between both parents. Co-parenting under a shared residence order can work very well, but does usually require a degree of co-operation, civil communication and an agreed schedule of care usually on a one or two week rotation.
Contact orders set out the arrangements for a child to spend time with the non-custodial parent. This is usually face to face, known as direct contact, but orders can also include provision for indirect contact via Facetime, Zoom, etc. Most contact orders refer only to reasonable contact, which leaves the parties free to organise and regulate their own arrangements. Sometimes, fixed arrangements are required and a defined contact order will be needed to stipulate when contact is to take place, including holidays, Christmas, birthdays, etc.
- Specific issue
A SIO sets out precisely how a specific issue should be dealt with, for example, change of surname, schooling, consent to medical treatment or permanent removal from the island.
- Prohibited steps
A PSO prevents certain steps from being taken, for example, taking a child abroad, changing schools, etc.
The Family Proceedings Advisory Service
The Family Proceedings Advisory Service (FPAS) was previously known as the Court Welfare Service, and more recently the Safeguarder Service. The English equivalent is CAFCASS.
FPAS is a state funded but wholly independent organisation which looks after the interests of children involved in family proceedings. The role of FPAS is to safeguard and promote the welfare of children by considering their needs, interests and wishes.
FPAS will become involved in a case upon direction of the court. This is usually considered at the first directions hearing, following which an individual Family Proceedings Advisor (FPA) will be appointed. FPA’s are usually ex-social workers, so are experienced in all aspects of child law and social work practice. Once instructed, the FPA will begin a thorough investigation, including interviewing the parents and making enquiries of social services, the police and any other relevant agencies.
In each case, the FPA will decide whether to meet the child. The views of the child are very important and it is one of the main tasks of the FPA to ensure that these are heard. Whilst it is not fixed in law, the general rule is that children from around the age of ten and older will be interviewed to ascertain their views. Often, the opinion of a sensible, mature child will be a significant factor and will be taken into account by the court.
A full investigation by FPAS is likely to take several months.
Part of the work of FPAS is to try and find an agreed way forward that is acceptable to both parents. If this can be done and the arrangements are agreed, the lawyers will draft a consent order which can be presented to the court for approval. If no agreement can be reached, FPAS will prepare a detailed report setting out the background of the case, the views of the parties and the children, and also an analysis of the 2008 Law welfare checklist in so far as it is relevant to the particular case. The report will also include a detailed recommendation as to what the FPA believes is in the best interest of the child. The completed FPAS report is then filed at court and sent to the parties and their lawyers.
Receipt of a carefully prepared report containing a detailed and sensible recommendation often leads to agreement prior to the final hearing. The main reason for this is that the court will usually follow the FPAS recommendation, although on occasion the court has been known to deviate from this. Ultimately, the final decision always lies with the judge.
In addition to their court role, FPAS also provide a mediation service. This is free of charge and no court application is required, although some referrals to mediation follow once a court application has been issued. For more information, please see gov.gg/familyproceedingsadvisoryservice.
It is very unfortunate that on divorce or separation, grandparents’ rights are often forgotten. By the very nature of their relationship, grandparents have much to offer both by way of practical day to day help and emotional support.
So what does the law say about grandparents’ rights and what can you do if contact with your grandchildren becomes an issue? The first point to note is that grandparents do not have an automatic legal right to see their grandchildren. Unlike parents, there is no presumption in law that a grandparent should have contact with a grandchild. Under the Children (Guernsey and Alderney) Law, 2008, grandparents can apply to the court for access. Making an application will require the permission of the court, when the court will consider the relationship between the grandparents and grandchildren, the frequency of previous contact and the current involvement in the grandchildren’s lives. Generally, permission to bring the application will be granted and the court procedure will follow the standard format outlined above.
In practice, contact applications brought by grandparents are relatively rare. Whilst there is no presumption that contact will be granted, such applications are usually successful in the absence of a serious reason to the contrary.
Of course, an alternative to court and a route to be recommended is to seek agreed contact arrangements by negotiation, round table meetings or mediation via FPAS. As with all aspects of family law, communication and discussion are paramount and court should be the very last resort if all else fails.
I want to co-parent my children, how do I go about this?
You will need a shared residence order in place. Such an order will provide that a child shall spend a significant amount of time with each parent in their household. It doesn’t have to be an equal division of time, and work schedules and other commitments often dictate the precise arrangements.
What if I am denied contact with my children?
The simple answer to this is that you take legal advice quickly. The longer you leave the situation without seeing your children, the more difficult it will become to reinstate contact. At the same time, your children will want to know what is happening and why you are absent.
How do we make our agreed child arrangements legally binding?
This can be done quite simply by way of a consent order, which is presented to the court for approval.
Can the police enforce a court order?
No, if the child is safe, the police have no powers to remove a child from someone with parental responsibility. If a court order is in place but is not being adhered to, you will need to return the matter back to court for enforcement.
Are there any apps that can help with co-parenting arrangements?
Yes, there are a number of very helpful apps available, some free, some by subscription. The market leader is probably OurFamilyWizard, but others include AppClose and 2houses. The website thecoparentway.com may also be helpful.