Children
The law relating to child matters are dealt with under the Children Act 1989 and
principally include the following areas:
- Parental Responsibility
- Residence
- Contact
- Prohibited Steps
- Specific Issue
- Overriding Principle
The overriding principle is that the welfare of the child is paramount. The Children
Act 1989 provides a ‘Welfare Checklist’ which details matters that are to be taken
into consideration by the Court and legal advisor.
Parental Responsibility
Parental Responsibility is defined as ‘all the rights, duties, powers, responsibility
and authority which by law a parent of a child has in relation to the child and
its property. Parental Responsibility will continue until the child attains the
age of 18 years.
If a child’s parents are married at the time of the child’s birth they will both
acquire Parental Responsibility. If the parents are not married at the time of the
child’s birth but do later marry then again both will acquire Parental Responsibility.
As a result of recent legislation an unmarried father will now also acquire Parental
Responsibility where he and the child’s mother register the birth of the child together.
Parental Responsibility Agreement
Where an unmarried father does not have Parental Responsibility he may request that
the child’s mother enter in to a voluntary Parental Responsibility Agreement. The
agreement is sworn by each of the parents respectively and will then be lodged with
the Principal Registry in London. Copies of the agreement are forwarded to each
of the parents and the matter is then concluded.
In the event that the child’s mother will not agree to enter in to a voluntary Parental
Responsibility Agreement with the unmarried father, it is then open to the father
to make an application to the Court for a Parental Responsibility Order. When considering
the father’s application for a Parental Responsibility Order the Court will consider
the father’s application on the basis of the ‘Welfare Checklist’ as defined by the
Children Act 1989 and on this basis will either grant or refuse the unmarried father’s
application.
Residence
Residence matters relate to the arrangements as to the person with whom the child
should live.
More often than not the matter as to where and with whom the child is to reside
is dealt with by the agreement of the parents, but in some cases this may not be
possible and in such cases it will be necessary for the parent disputing the residence
of the child to make an application to the Court for a Residence Order.
When considering the parent’s application for a Residence Order the Court will consider
the parent’s application on the basis of ‘Welfare Checklist’ as defined by the Children
Act 1989 and on this basis will either grant or refuse the parent’s application.
It should be noted that if the Court grants the parent’s application the Residence
Order will usually also contain a provision providing that parent with Parental
Responsibility for the child subject to the Order.
Contact
Contact matters relate to the arrangements for contact between the child and the
non-resident parent. Usually the arrangements for contact can, and will, be dealt
with by agreement with the parents agreeing that the non-resident parent have contact
for a specified period, on specified dates or intervals. If, and wherever possible,
an agreement should be reached as to who is to be responsible for the collection
and return of the child to the resident parent.
In some circumstances an agreement cannot be reached with regard to the arrangements
for contact and in such cases it will be necessary for the non-resident parent to
make an application to the Court for a Contact Order.
When considering the non-parent’s application for a Contact Order the Court will
consider the non-parent’s application on the basis of the ‘Welfare Checklist’ as
defined by the Children Act 1989 and on this basis will either grant or refuse the
non-parent’s application.
Prohibited Steps
Prohibited Steps Orders can be sought by the parent of a child to prevent the other
parent from taking a step or course of action, in the meeting of that parent’s Parental
Responsibility for the child, as specified in the Court Order. For example; the
removal of the child from the UK without the consent of the other parent or Court.
Prohibited Steps Orders can be made either on their own or together with a Residence
or Contact Order.
When considering the parent’s application for a Prohibited Steps Order the Court
will consider the parent’s application on the basis of the ‘Welfare Checklist’ as
defined by the Children Act 1989 and on this basis will either grant or refuse the
parent’s application.
Specific Issue
Specific Issue Orders can be sought by a parent and act to give directions so as
to resolve a specific issue that may have arisen in relation to the child or which
may have arisen in relation to any aspect of the other parent’s exercise of Parental
Responsibility in relation to the child. For example; where the parents of the child
are unable to reach an agreement in relation to the child’s education or religious
beliefs.
Specific Issue Orders can be made either on their own or together with a Residence
or Contact Order.
When considering the parent’s application for a Specific Issue Order the Court will
consider the parent’s application on the basis of the ‘Welfare Checklist’ as defined
by the Children Act 1989 and on this basis will either grant or refuse the parent’s
application.
CAFCASS
In cases where the parent of a child has submitted an application to the Court for
any of the Orders referred to in this section it is usual for the Court to appoint
a Child and Family Welfare Officer (CAFCASS Officer). The CAFCASS Officer is an
official attached to the Court and will usually be a Social Worker who has considerable
experience and is therefore suited to deal with such delicate matters.
The CAFCASS Officer will attend each of the parties to the application, and if relevant
will also attend the child to the proceedings, and from these meetings will prepare
a CAFCASS Report. The CAFCASS Report will usually provide the Court with details
of the dispute and if relevant the child’s wishes. Though the Court will not base
its decision wholly on the wishes of the child, the child’s wishes will be placed
as paramount in accordance with the ‘Welfare Checklist’ as defined by the Children
Act 1989.
Non-Intervention Principle
Under the terms of the Children Act 1989 the Court cannot make any of the above
Orders in respect of a child should it be in that child’s best interests, in consideration
of the ‘Welfare Checklist’, that no Order is made. Therefore the Court will only
grant an Order when it has concluded that such an Order is in the child’s best interests.
The Court will only be willing to consider an application for an Order where there
is a genuine dispute and where it is evident that the dispute is such that it cannot
be resolved without the involvement of the Court, or where attempts have been made
to resolve the dispute but have been unsuccessful. The only exception to this rule
is in relation to an application for a Parental Responsibility Order, but again
the Court may determine that it is not in the child’s best interests, in consideration
of the ‘Welfare Checklist’ for such an Order to be granted to the unmarried father.
If you would like to arrange an appointment to see one of our Family Law Team to
discuss these or any other family law issues, please e-mail
family@chattertons.com or telephone one of the numbers given below.
Contact Details
Family Team