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Tuesday 18th November 2008 - 2:57 pm |
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Regulated by the Solicitors Regulation Authority. Authorised and regulated by the Financial Services Authority. |
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 Personal Law
Family Law
Children
ChildrenThe law relating to child matters are dealt with under the Children Act 1989 and principally include the following areas: Parental Responsibility 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 click here or telephone one of the numbers given below. Overriding PrincipleThe 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 ResponsibilityParental 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 AgreementWhere 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. ResidenceResidence 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. ContactContact 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 StepsProhibited 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 IssueSpecific 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. CAFCASSIn 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 PrincipleUnder 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. Contact Details
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