Arrangements for Children
In any separation it can be the children who are most affected. Clark Family Law recognises this and will work sympathetically with both parents to avoid any unnecessary upset for the children involved.
Arrangements for Children after Divorce or Separation
If you have recently separated then no doubt your first concern will be where your children will live and when they will spend time with each parent.
In the event that an agreement cannot be reached between parents we can assist you in trying to negotiate a resolution, perhaps with the assistance of mediation.
Mediation is a pre requisite to making an application to the court and issuing proceedings is seen as a last resort. There are various exceptions to having to attend mediation, for example if there has been domestic abuse, if there are welfare concerns in respect of a child and delay would cause prejudice, urgency, and where mediation is seen as being inappropriate by a mediator. This is not an exhaustive list.
If an agreement cannot be reached either through negotiation between solicitors or via mediation, or if your matter is urgent, then we can advise you about making an application to the Court to determine the arrangements.
The court no longer looks at ‘residence’ and ‘contact’ and instead simply focuses on the quality of the time a child spends with each parent and the specific needs unique to each child. The arrangements are then set out in a Child Arrangements Order, as opposed to what would previously have been either a residence or contact order.
Rather than looking at “rights” of parents, family law considers “parental responsibility” for a child until it reaches the age of 18. Mother automatically has parental responsibility but the situation is a little more complicated with father.
If the parents are married then father automatically has “parental responsibility”, as he does if the parents are not married but where the child was born after 1st December 2003 and the father is named on the birth certificate. In all other circumstances, father can still obtain parental responsibility by either entering into a formal agreement with mother or alternatively by applying to the Court.
It is important not to confuse parental responsibility with the day to day decisions made about your child. These decisions will fall primarily to the parent with main care of the child. Parental responsibility can mean involvement in, for example, obtaining medical treatment, accessing information from schools, and being involved in the decision making process for things such as which school to attend.
Children Act 1989
This is the main piece of legislation which helps the Court reach a decision. It can also assist to focus the parents on the main issue, the child.
Broadly speaking, the Orders available to the Court can be split into 4 categories.
- Living With (formally known as Residence) – determining where a child should live;
- Spending Time With (formally known as Contact) – when the non- resident parent sees the child;
- Specific Issue Order – an Order dealing with a specific issue, eg parental responsibility or choice of school;
- Prohibited Steps Order – an order prohibiting a party from doing something, eg removing a child from the jurisdiction.
The welfare of the child is paramount. The Court therefore apply what is known as the “welfare checklist” to assist them with their decision. An independent Children and Family Court Advisor (CAFCASS) may be asked to help you resolve the dispute or to help the Court decide. If Social Services have been involved in your dispute then they may be asked to prepare this report instead of CAFCASS.
If no agreement can be reached, even with the assistance of CAFCASS, then the Court may have to list the matter for a “final hearing”. This is where both parties give evidence outlining their position and the Court makes a decision as to what will happen. This is not ideal as the Court does not know your children and has only the CAFCASS officer and the evidence to rely on. Although final hearings are sometimes unavoidable, it is much better for all concerned if an agreement can be reached before this stage.
What is a "No Order" Principle
The Court works on what is known as the “no order” principle. In other words the Court will not make an Order unless they feel it is absolutely necessary.
Domestic Abuse & Children
In cases where there are allegations of domestic abuse then the Court should be informed at the earliest opportunity of any incidents to be considered. Domestic abuse is not an automatic bar to contact with children but is a factor to be considered seriously by the Court when making a decision.
There is a specific procedure to be followed in cases where there are serious allegations of Domestic Violence or concerns regarding Child Protection. The Court may direct a Fact Finding Hearing, that takes place prior to any substantive decisions regarding the care of children. It is imperative that you seek specialist legal advice.
Change of Surname
It is the view of the Court that a child should retain the name it has on its birth certificate unless there are exceptional circumstances. Unless the non-resident parent therefore agrees to a name change in writing it is unlikely that a Court will consider such an application. Case law on this issue is clear that this applies to parents whether they have parental responsibility or not.
What is Child Abduction?
If you have a serious fear your child may be abducted then you should advise us immediately. There are a number of preventative measures available such as obtaining residence orders, only allowing supervised contact and prohibited steps orders (to prevent that step being taken). You should think about where your child’s passport is, what links the other party may have to other countries, or perhaps they may a history of not complying with orders.
Again, if you believe your child has been abducted you should inform the police and ourselves immediately. There are options available to us such as port alert systems, remedies under the Hague Convention amongst others which can assist in having your child safely returned.
Websites and contacts providing assistance on this issue:
- International Child Abduction and Contact Unit – telephone 020 7911 7047 / 7045 and/or download the International Child Abduction and Contact Unit application form from the gov.uk website
What is Parental Responsibility?
Parental responsibility is not about “rights” in respect of a child, but instead, as the name suggests, is about “responsibility” for a child.
This is sometimes a particularly sensitive issue when parents separate. Whilst any party with parental responsibility should be involved in the decision making process, it does not automatically not mean that the day to day decisions of the parent with care of the child should be interfered with unnecessarily.
Having parental responsibility for a child enables a parent to make decisions in respect of their child about matters such as education, religion and medical treatment. Any parent with parental responsibility can, for example, object to any proposed change of a child’s name.
Who Has Parental Responsibility?
Mothers automatically have parental responsibility for their child. On the other hand, fathers do not automatically acquire this. Fathers automatically acquire parental responsibility on marriage to the mother, whether this is before or after the child is born.
If a child was born before the 1st December 2003 and the parents are not married then the father does not have parental responsibility. If a child was born after 1st December 2003 and the parents are not married, then the father will only acquire parental responsibility automatically if he is named on the birth certificate at the time the child is first registered.
How Do I Get Parental Responsibility?
Parental responsibility can be acquired in 2 ways:
- By agreement with the mother. In this case a form needs to be completed, signed by both parents and independently witnessed. This form is then lodged with the Principal Registry of the Family Division in London. This is done by post.
- By application to the Court under the Children Act 1989. When considering whether to make a Parental Responsibility Order the Court would consider things such as the reasons behind the application, the commitment shown to the child and the level of attachment. Where paternity is disputed blood tests can be undertaken. It should be noted however that the Court cannot order this to happen, but only draw inference from the mother’s refusal to undertake such tests.
How Long Does it Last?
Once parental responsibility is acquired it usually cannot be taken away. Parental responsibility lapses when a child reaches the age of 18.
For further information, or to arrange an appointment please contact us on 01423 637 272.
Mediation helps you make decisions without spending months locked into costly litigation proceedings.
Collaborative law is a dispute resolution option to assist you to resolve matters outside of Court.
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