If separating couples cannot agree arrangements for their children it may be necessary to seek the assistance of the court.
Issues in respect of a child’s home, choice of school and parental rights are not just dealt with within a 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
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:
- The ascertainable wishes and the feelings of the child concerned (considered in the light of the age and understanding of the child)
- The physical, emotional and educational needs of the child
- The likely effect on the child of any change in circumstances
- The age, sex, background and any characteristics of the child which the court considers relevant
- Any harm the child has suffered or is at risk of suffering
- How capable are each of the child’s parents (and/or any other relevant person), of meeting the child’s needs
- The range of powers available to the court under the Act and the proceedings in question
- 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. This is referred to as the “no order principle”
- 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 party or parties 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 section 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. Applications may either be heard by a District Judge or Magistrates.
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
In most scenarios the mother and father of a child will automatically have parental responsibility. However, should this not be the case, this order 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 an order that the child will live with him, 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 similar order in relation to a child, however this parental responsibility will only last for the duration of the 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 the arrangements detailing with whom a child is to live, spend time or otherwise have contact. 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:
- Change their surname
- 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. Child arrangement orders have replaced the previous use of “residency orders”, the idea of sole or shared residency no longer applies.
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 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, the removal of a child permanently from the jurisdiction of England and Wales, or relocation of a child within England and Wales. Directions and conditions may also be attached to the order.
The role of Cafcass
Cafcass stand for Children and Family Court Advisory and Support Services.
After submitting an application to the court for a Child Arrangements Order a Cafcass Officer will usually contact both parents to discuss the application and issues.
Cafcass are there to advise the court on what they consider to be in the best interest of the child/children subject to the application.
They will carry out safeguarding checks and prepare a short report for the court prior to the first hearing. On the day of the first hearing each party may also have an opportunity to speak to a Cafcass Officer.
Depending upon the issues in the application, the involvement of the Cafcass officer may stop at the first hearing. However, if the court deems it necessary, they may ask the Cafcass officer to work with the parties and child/children to further consider the issues in the case. This may result in the Cafcass officer producing a report for the case recommending an outcome or suggesting further work.
Separated Parents Information Programme (SPIP)
In circumstances where separated parents are in dispute about any issues relating to a child, the court is likely to direct that they intent a SPIP. This will probably happen very early on in any court proceedings. A SPIP is designed to assist parents in identifying the areas of conflict between them, in communicating more effectively and in seeing the others viewpoint to minimise conflict.