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Access Disputes - how to settle your differences without going to court

View profile for Graeme Barclay
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Whether you are married, in a civil partnership or cohabiting, splitting up can be an emotional time.  If there are children involved, the feelings of hurt and anger can be magnified.  However, this is the time when your children need you to be at your most level-headed. 

With Legal Aid now only offered in a handful of cases, more couples are trying to resolve their differences without going to court.  While it may not be possible in every case, settling issues such as contact with children without appearing in front of a court can be the best way to re-start your separate lives, while maintaining as close to a family unit as you can.  Graeme Barclay, Family Partner, explains here how you can achieve this while keeping your child’s best interests at the heart of your discussions.

Who has Parental Responsibility?

If you’re coming out of a marriage, it’s important to remember that both parents have Parental Responsibility, if you were married at the time of the child’s birth.  If you weren’t, Parental Responsibility is automatically given to the mother. 

“However, unmarried fathers who registered or re-registered their name on their child’s birth certificate after 1st December 2003 will also have Parental Responsibility for their child,” begins Graeme.  “Parents can agree to share Parental Responsibility at any time during their relationship or separation by signing a Parental Responsibility Agreement.”

What do I need to agree for my children?

Before you consider discussing who’s going to live where with the children, it’s advisable to talk with the other parent in a calm and reasonable manner.  At this point, it should be remembered that whatever is decided must be for the benefit of the children, both in the short and long term.  There will be several points to consider, including:

  • With whom the children will live
  • How you will ensure that the children spend time with the other parent
  • Who will see the children on which days
  • How holidays will be divided
  • How the children will get to school and friends’ houses.

Making a plan for my children following separation

Not all parents are able to communicate in a calm and rational manner, especially if the separation has been acrimonious.  Often the emotional impact of a separation can make face-to-face communication next to impossible. However, there are still options available, including text messages, emails, phone calls and even asking a mutual friend or family member to act as a go-between, until the relationship is in a better state.

In the event that agreements can be reached, parents might want to record their decisions in the form of a Parenting Plan.  While not legally enforceable, a Parenting Plan can be a good tool to help both parties adhere to what they initially agreed.  The plan can be augmented in the future, should the need arise.

Family Mediation

If talking with the other parent is more destructive than constructive, you might want to consider using a family mediator to resolve any issues you have.  Family mediators are there to encourage an environment in which both parents have the opportunity to raise their concerns, safely and without the stress of appearing in front of a court. 

“Considering mediation is now a mandatory step in the process before going to Court, through a Mediation Information Assessment meeting,” continues Graeme.  “It is in this meeting that the family mediator will ascertain whether mediation is suitable for your situation and whether it is likely it will result in a resolution.  There are situations where mediation is not an option, for example if there has been domestic abuse in the relationship.”

Once mediation has succeeded and decisions are made, a memorandum of understanding is completed.  Graeme concludes, “Using a legally trained Family Mediator, such as my colleagues Sam Miles or Claire Knight, will mean you can be assured that any decisions that are made are in the best interests of the children and can hopefully avoid contested court proceedings.  

The break-up of a family unit is stressful for everyone involved, but for the children most of all.  If you can agree on issues such as child arrangements without going to court, you may find this sets the standards for communication in the years to come.  To discuss your situation with Graeme or a member of the Family team, you can contact them on 02380 717431 or email


This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.