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Guardianship of children

Disputes between guardians

What happens if guardians disagree?

Care of Children Act 2004, ss 30–35

If you and your child’s other guardian can’t agree on decisions about the child – for example, about what school they should go to – either of you can apply to the Family Court for it to decide the issue, so long as you’ve already tried to resolve the dispute through Family Dispute Resolution (see below).

The welfare and best interests of your child will be the first and most important factor when the Family Court makes its decision.

Family Dispute Resolution is usually compulsory

Care of Children Act 2004, s 46E

Guardians usually can’t take a dispute to the Family Court unless they’ve already attempted to resolve the dispute through the Family Dispute Resolution process (for more details about FDR, see “‘Family Dispute Resolution’: Mediation through the Family Court” in this chapter).

The rules governing when Family Dispute Resolution is compulsory, and how to prove to the Family Court that FDR has been attempted, are the same as for applications for Parenting Orders (see “Care arrangements when parents have separated / Parenting orders / Compulsory steps before you can apply for a Parenting Order” in this chapter).

How the Family Court process works in guardian disputes

If you apply to the Family Court for it to resolve a dispute with your child’s other guardian, the application process and the court processes after you apply will be basically the same as if you had applied for a Parenting Order to settle a dispute about care arrangements (see “Parenting orders” in this chapter).

The general principles the judge will apply in deciding the dispute will also be the same as in a Parenting Order case (see “Parenting orders” in this chapter).

Resolving guardianship disputes by agreement

Care of Children Act 2004, s 40

If guardians reach agreement on an issue to do with the child’s care and upbringing, such as their school, hobbies or religion, they have the option of asking the Family Court to formalise the agreement by turning the agreed terms into a court order. The agreement can then be enforced like any other court order.

As well as guardianship issues, agreements brought to the Family Court in this way sometimes also include parenting arrangements for day-to-day care and contact.

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