Children - Private Law
When will you need to apply to the court?
If you and your partner are not able to agree on any matter relating to the children then an Application can be made to the court under the Children Act 1989. There are other methods available to help parents resolve their differences about their children, such as mediation. If you would like further information about mediation services near you please let us know.
What will the court look at?
When the courts make any decision about the children, the paramount consideration is the welfare of the child. The court will only become involved if there is a dispute relating to the children because there is a presumption that the court should not intervene unless it is in the best interests of the child. Therefore it is important for both parties to try and reach an agreement. The court will also be aware that any delay is likely to be harmful to the child’s welfare.
There are certain criteria which the court will consider when deciding whether an Order under the Children Act should be made. These are as follows:-
(a) The ascertainable wishes and feelings of the child concerned (considered in the light of the child’s age and understanding).
(b) The child’s physical, emotional and educational needs.
(c) The likely effect on the child of any change in his/her circumstances.
(d) The child’s age, sex, background, and any other characteristics which the court considers relevant.
(e) Any harm which the child has suffered or is at risk of suffering.
(f) How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs.
(g) The range of powers available to the court under the Children Act in the proceeding in question
What is Parental Responsibility?
Parental Responsibility is the set of rights, duties and obligations which a person, often a parent, has regarding a child. It enables that person to make important decisions regarding the child’s upbringing, for example where they should go to school; what form of religious upbringing they should have; what medical treatment they should receive; and whether their name should be changed. Parental Responsibility does not cover everyday decisions about the day to day care of the child, or how much contact each parent has with the child.
If you are married…..
If the mother and father of the child were married to each other at the time of the child’s birth or they have married since their child’s birth, then both parents will share Parental Responsibility in respect of the child even if they later divorce.
If you are not married…..
If a father has never been married to the child’s mother for all children born before 1st December 2003, then the mother will have sole Parental Responsibility for the child. In other words, an unmarried father has no ability to make important decisions about the child’s upbringing. In practice, this can mean that schools, doctors, hospitals etc may not deal directly with an unmarried father who is separated from the mother unless the father has Parental Responsibility.
If the child is born after 1st December 2003 and the father is named on the birth certificate then both parents share Parental Responsibility.
How can I get Parental Responsibility?
There are two ways in which Parental Responsibility can be obtained. The first is by agreement with the child’s mother. This is done by completing a simple form which is signed by both parties in the presence of an Officer of the Family Court. The form is then registered at the Principal Registry in London.
If the mother is not prepared to sign a Parental Responsibility agreement then the father can make an application to the court for a Parental Responsibility Order. If an application to the court is necessary then the courts will take into account the following:-
(1) The commitment shown towards the child
(2) The strength of the attachment between the father and the child
(3) The reason for applying for the Parental Responsibility Order
What other Orders can the Court make?
A Residence Order is an Order which states the person with whom the child must live. It may not necessarily be a natural parent. The person in whose favour the Residence Order is made may take the child out of the United Kingdom for a period of up to one month without the consent of any other person, even if they have Parental Responsibility for the child. A person with a Residence Order in their favour automatically acquires Parental Responsibility as well, if they do not already have it.
A Residence order can be shared, if the court feels it appropriate. The amount of time the child spends with each parent under a shared residence order does not have to be equal.
A Contact Order is an Order which states which person or persons a child must have contact with. That contact may be in the form of direct contact, i.e. face to face visits or having the child stay over night; or indirect contact, i.e. letters or telephone calls. If necessary, the court can make an Order which specifies particular days and times that the contact is to take place. The court may also say that the contact should be supervised. Generally, the court take the view that a child has the right to have a relationship with both parents provided it is in the child’s best interest to do so, and will look to try and establish a pattern of contact that is suitable for everyone including the child.
If a contact order is disobeyed by one parent there are enforcement measures that the court can impose, for example, payment of money to the other parent if they are out of pocket due to the failure of contact; attendance at a parenting course; attendance at anger management courses; fine or imprisonment or the Residence of the child could be switched.
Prohibited Steps Order
A Prohibited Steps Order prohibits a person from exercising certain parental rights and duties, i.e. it prohibits a person from taking a certain step in relation to a child. For example, in a case where it is feared that a child may be taken without consent, a Prohibited Steps Order could be made to prevent a particular person from removing the child from the area; or prevent someone from taking the child to a particular place.
Specific Issue Order
A Specific Issue Order is made when the court is asked to decide on a “specific issue” relating to an aspect of Parental Responsibility for a child. For example a Specific Issue Order can be made if there is a dispute about which surname a child should be known by; or which school they should attend.