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Legal Arrangements for Children

Parental Responsibility

Parental Responsibility confers the ability to make and be involved in decisions concerning a child or his property. Parental Responsibility covers matters such as

  • Care and control of the child to include where a child will live and how much time they will spend with other family members. This also encompasses day to day matters and routine.
  • Education to include which school a child will attend.
  • Medical treatment.
  • Religious upbringing.
  • When and in what manner the child might be guided, chastised or disciplined.
  • Protection and maintenance.
  • Consent to marriage, if a child seeks to marry between the age of 16 and 18.
  • Agreement to adoption. A parent's consent is required in circumstances where a child is to be placed for adoption.
  • Appointment of a Guardian. A person with Parental Responsibility can appoint a Guardian to take over the care and control of a child in the event of the death of all those with Parental Responsibility.

Mothers and Fathers, who are married to the Mother, have Parental Responsibility. Unmarried Fathers do not automatically acquire it but they can acquire it in the following circumstances:-

  • By being named on the birth certificate for a child born and registered pre 1st December 2003 and the Father is named on the birth certificate
  • By entering into a Parental Responsibility agreement with the Mother
  • By order of the Court
  • By subsequent marriage to the Mother.

The Parental Responsibility Agreement is a prescribed form and must be correctly completed, signed and registered for it to be effective.

The Court will grant a Father Parental Responsibility if he is committed to the child and can show a genuine attachment and the motivation behind the application.

Since 2005 it has been possible for step parents and civil partners of parents to obtain Parental Responsibility. This can only be acquired by agreement with the parents (but only those with Parental Responsibility) or by order of the Court. Parental Responsibility will last until the child is 18 and will not end if that marriage or Civil Partnership comes to an end.

Making Arrangements

Upon separation parents are free to make whatever arrangements for their children in relation to where and with whom they will live and how much time they will spend with the other parent. It is certainly going to be in a child’s best interest if parents can agree the arrangement between themselves. The Children Act 1989 contains a principle that the Court will make no order in relation to children unless it is necessary to do so in the best interests of the child. Some parents find it useful to use mediation agencies to assist them in overcoming their own issues and focusing on reaching agreement about their children. It is only in the event that parents cannot agree, or there are serious welfare concerns that make mediation inappropriate and one party makes an application, that the Court will become involved.

The Orders Available

A Residence order is an order which determines where a child shall live. Such an order can be shared between two parents in which case the order will specify the times the child will spend in each household.

A Contact order is an order which requires the parent with the residence order to facilitate contact between the child and the other parent. Usually the level and extent of contact is defined by the order.

A parent may also make an application for a Prohibited Steps order which, if granted will prevent the other parent from taking a particular step in relation to the child, i.e preventing a child from being taken out of the country or undertaking a particular form of medical treatment.

A parent may also apply for a Specific Issue order to determine a point of dispute between the parents over a particular issue, i.e which school a child should attend or which surname the child should be known by.

The Court Process

The process is begun by application on a standard form. If harm is alleged a further form is required by the Court. The Court will list the application for a 30 minute conciliation appointment. In the absence of welfare concerns the parents are encouraged at the first appointment to reach an agreement. An Officer of the Children and Family Court Advisory Support Service (CAFCASS) will be present to assist parties and the Judge.

If agreement is not reached at this stage the Court will usually ask the parties to file statements setting out their concerns and what they are seeking. Often a CAFCASS Officer is appointed to prepare a report. The appointed officer will meet both parents, speak to the school and other relevant individuals. They will also meet the child concerned either to observe them with their parents or to discuss matters with them but these conversations are at an age appropriate level for the child.

The Report will be considered by the Judge at the final hearing but often it can assist the parties in resolving their issues without a contested hearing. The reason for this is that it will be given great weight by the Judge so if it contains a clear recommendation it may result in an agreement.

If a final hearing is required both parties will be required to attend and give evidence on oath and be cross examined. The child does not attend and give evidence. In certain cases where it is appropriate the Court may have ordered that the child be separately represented in which case the child’s Guardian will also give evidence. The Guardian will be an independent person appointed by the Court.

The Judges Decision

The paramount consideration for the Judge is the welfare of the child. In order to assess this the Judge will go through the welfare checklist set out in the Children Act 1989, namely:

  • The wishes and feelings of the child concerned in view of their age and understanding
  • The child's physical, emotional and educational needs
  • The likely effect on the child of any change in circumstances
  • The child's age, sex, background and any other characteristic that the Court considers relevant
  • Any harm the child has suffered or is at risk of suffering
  • How capable each of the children's parents and any other relevant person are of meeting the child's needs.

Breach Of Order

In circumstances where there is an order in place, usually a Contact order and the other parent refuses to adhere to it steps can be taken to enforce it. If the Court attaches a Penal Notice to the order and it is breached the parent who has not complied with it will be in contempt of Court for which the punishment is a fine or imprisonment. Ultimately, the Court may consider a change of Residence but this decision will be based on what is in the best interests of the child and not simply as a means of punishment to a parent. The government is presently looking at other methods of enforcing contact orders as generally it is thought to be in a child’s best interests to have a relationship with both its parents.

Taking a Child Abroad

A parent cannot take a child (under the age of 16) out of the United Kingdom without the consent of all others who have Parental Responsibility for the child or an order of the Court. To do so may be a criminal offence under the Child Abduction Act 1984.

It is always sensible to discuss holiday plans with the other parent. If they would not agree to a reasonable request for a holiday then an application can be made to the Court. Such an application is likely to succeed as long as it is reasonable and in the child’s best interest.

If a Residence order is in force then the person in whose favour the Residence order is made may take the child out of the UK for up to 28 days without consent but of course they should still notify the other parent of their plans.

If a parent wishes to move abroad the consent of the other parent will be required. Even if the other parent does not have Parental Responsibility, there should be consultation and agreement. This will enable proper plans to be put in place for the child’s ongoing relationship with the other parent and will prevent any last minute disruption to the move.

If the parent objects to the child’s move the Court will have to decide the matter by having regard to:

  • The welfare of the child, which will be paramount.
  • The proposals of the parent wishing to live abroad will be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.
  • The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.
  • The effect upon the child of the denial of contact with the other parent and in some cases his family.
  • The opportunity for continuing contact between the child and the parent left behind.

There is not a presumption that the parent who wishes to move abroad will be given permission to remove a child but great weight is given to their proposals. As long as their plans are reasonable, well thought out and genuinely motivated, permission is likely to be granted.

Call 0870 164 2372 now for a consultation with a Pannone Family Law Solicitor or Lawyer.