If separating couples cannot agree arrangements for their children it may be necessary to seek the assistance of the courts.
Issues in respect of a child’s home, choice of school and parental rights are not just dealt with within divorce setting. Freestanding applications can be made to the court on any question of a child’s welfare. A parent or a person with parental responsibility can apply at any time for orders from the court. Other relatives, for example grandparents, can apply to the court for an order if they obtain the court’s permission to do so. Applications to the court are made under the Children Act 1989, the principles of which are set out below.
THE CHILDREN ACT WELFARE PRINCIPLES
1. The guiding principle of the Act is that the welfare of the child is of paramount consideration. The court must have regard in particular to s.1(3) factors which are as follows:
a. The ascertainable wishes and the feelings of the child concerned (considered in the light of the age and understanding of the child).
b. The physical, emotional and educational needs of the child.
c. The likely effect on the child of any change in circumstances.
d. The age, sex, background and any characteristics of the child which the court considers relevant.
e. Any harm the child has suffered or is at risk of suffering.
f. How capable are each of the child’s parents and any other person, in relation to whom the court considers the question to be relevant of meeting the child’s needs.
g. The range of powers available to the court under the Act and the proceedings in question.
A child’s views in private law are often established by the court appointing a Cafcass Officer to assist with mediation or to prepare a report. If a Cafcass Officer prepares a report the children, parents and schools will usually be interviewed prior to a report being submitted to the court.
2. The court must consider whether making an order would be better for the child than making no order at all. There is a presumption that no order will be made by the court unless it is better for the child to do so.
3. There is an emphasis on avoiding unnecessary delay. Delay in determining any question in respect of a child’s welfare is deemed likely to prejudice the welfare of a child.
CHANGES POST 22 APRIL 2014
Since 22 April 2014 a person who applies for an order must first attend a Mediation Information and Assessment Meeting (MIAM). This will be with a trained mediator who will provide information about mediation and other forms of resolving disputes, and assess whether they are appropriate. There are some limited exemptions to this requirement such as where there has been domestic violence or where one party lives abroad. The other parties(s) to the intended application will also be invited to attend a MIAM although this may be at a separate meeting. If mediation is not deemed suitable the mediator will complete the necessary form on the application to be sent to the court. The court is able to adjourn proceedings at each stage to enable alternative forms of dispute resolution to be attempted if the judge feels this would be more suitable.
TYPES OF ORDER
The main types of court order are as follows:
- a Parental Responsibility order.
- a Child Arrangements order.
- a Prohibited steps order.
- a Specific issue order.
Parental Responsibility Order
This recognises that parents have equal responsibility for their children, and that they should consult each other on all major decisions relating to the welfare, education and development of the children. A mother automatically has parental responsibility for her child from birth. The father’s position depends on various factors as follows:
- A father will automatically have parental responsibility if he is married to the mother either before or after the birth.
- After 1 December 2003, an unmarried father named on the child’s birth certificate acquires parental responsibility automatically.
- The father may agree with the mother that he has parental responsibility by entering into a parental responsibility agreement.
- A father may apply for a parental responsibility order to be granted to him by the court.
- If a father has not previously had parental responsibility but obtains a residence order then the father will at that time also gain parental responsibility. Any other person will automatically have parental responsibility of a child if they are awarded a residence order in relation to the child by the court but this parental responsibility will only last for the duration of the residence order.
- An unmarried father can have parental responsibility taken away from him by order of the court although this only occurs in exceptional circumstances.
Child Arrangements Order
This order will set out arrangements as to whom a child is to live, spend time or otherwise have contact with. It may also set out when a child is to live, spend time or otherwise have contact with any other person. Where an order is in force that regulates who a child shall live with you are not permitted to: i) change their surname or ii) remove them from the UK without written consent of each person with parental responsibility or the permission of the court. This does not however prevent the removal of a child for less than one month by a person named in a Child Arrangements Order as a person with whom the child shall live.
Prohibited Steps Order
This order is akin to an injunction and prevents a specific step being taken in respect of a child. Examples may be to prevent a child’s school being changed or preventing the child being taken somewhere dangerous on holiday. Conditions and directions may be attached to the order.
Specific Issue Order
A specific issue order enables a parent and/or others to bring a particular question relating to the exercise of parental responsibility to be determined by the court. Examples of issues include the future of a child’s schooling, medical treatment, religious upbringing, change of surname or removal of a child permanently from the jurisdiction of England and Wales. Directions and conditions may also be attached to the order.
- An application may be made to appoint or terminate the position of a guardian. The guardian may be appointed in writing, e.g. via a will or by someone with a residence order or parental responsibility.
- Application to change a name.
- Application to remove a child from the jurisdiction (whether a holiday, school visit or otherwise but see the effect of a residence order above).
- For financial provision for the child(ren).
The information contained in this article is designed to provide, for guidance purposes only, a general introductory summary of the subject matters covered. It does not purport to be exhaustive nor to provide legal advice nor should be used as a substitute for such advice.
© Stevens & Bolton LLP 2016