In days gone by there was a perception that divorcing parties went to war over what was termed “custody” and “access” to children. Those terms no longer exist and a Court may make orders pertaining to “live with” and “spend time with” , terms which are much more user friendly. It is usual , but not always the case, that young children live with mother and spend time with father. Sometimes there will be a shared order, but the Courts are keen that children have a clear perception of where their “main” home is.
The views of the children are taken into account to a degree especially as they approach their teenage years. A “ wishes and feelings” report may be commissioned by the Court. But what a young child states that he or she wants is not necessarily what is best for them. Parties are encouraged to decide what is best for the children as between themselves – the view is that even though they cannot get on as husband and wife, they should endeavour to co parent as mother and father. Thus the “no order” principle came into being. Unless it can be shown that it is manifestly better for there to be an order, rather than no order at all, the Courts will leave well alone. There is no hard and fast rule about this – each case will be decided on it’s own merits.
The powers of the Court still exist to regulate other situations such as where the children will be schooled ie a faith school, private school or otherwise, and for example, whether the party who does not have day to day care of the children can remove them from the jurisdiction. Usually no permission is needed for a holiday up to 28 days provided it can be shown that the children and the party travelling with them have roots in the UK, a return ticket and have provided an address and phone number whilst overseas. Otherwise, a Court will decide what is best for the children. These orders are called “specific issue” orders, and as the name suggests, they exist to deal with specific issues which may arise between the parties.
The issue of child maintenance is a difficult one. The Child Maintenance Service deals with these matters. However it is possible for there to be an agreement within the divorce proceedings for an agreed monthly sum to be paid. The Court cannot rule on this if not agreed. However there are provisions for lump sums for children to cover capital expenditure such as school/university fees under Schedule 1 of the Children Act 1989. These are separate from the finances within a divorce.
To a very large extent the emphasis has been shifted to the parties to regulate their children’s lives without reliance upon judicial guidance.