Most aspects relating to children upon divorce or breakdown of a relationship and also care proceedings are governed by the Children Act 1989 as amended and supplemented by other statutes.
Under the Children Act 1989 the interests of the child are paramount and there is a welfare checklist set out for the Court to consider in exercising its powers. The Court will not make any order unless it is positively in the child’s interests to do so.
The law on children has changed in the last couple of years an emphasises the importance of children having an ongoing relationship with both of their parents following family separation, when it is in the child's interests. Terminology is changing and we moving away from concepts of Residence and Contact as set out below to Shared Parenting and Child Arrangements Orders. Child Arrangement Orders come into effect from 22nd April 2014. There is also a presumption that both parents are important in a child's life but not that this means an equality of time with each.
These are the rights and obligations a parent has for a child. They are not extensively set out in the legislation but are taken to include the obligation to make sure the child is properly accommodated and cared for as well as the right to make important decisions such as schools attended, consent to medical treatment, with whom they come into contact, the religion the child is brought up in etc. As a matter of good practice such decisions should always be taken in consultation with the other parent – and the child if old enough - whether Parental Responsibility is shared or not.
The child’s mother acquires Parental Responsibility upon birth of the child but the father acquires it only if:
- He is married to the mother at the time of birth or subsequently marries her.
- He is recorded on the child’s birth certificate as the father.
- He is granted it by a Court.
- He enters into a Parental Responsibility Agreement with the mother.
For children born before 1st December 2003 even if the father’s name appears on the birth certificate he has not acquired Parental Responsibility. It is possible to re-register a child’s birth to show the father’s details so that Parental Responsibility can be acquired this way.
This can be a complex area and advice should be taken. For example, the Parental Responsibility Agreement has to be in a particular form with various formalities to be followed, Parental Responsibility can also be delegated, for example, where a parent is going into hospital and the child is being looked after by grandparents.
Child Arrangements Order
This means means an order regulating arrangements relating to any of the following—
(a) with whom a child is to live, spend time or otherwise have contact, and
(b) when a child is to live, spend time or otherwise have contact with any person;”.
It replaces the concepts of Residence and Contact.
Residence was the term used to describe with whom the child lives. This could be joint or shared, an increasingly common situation to avoid the implication that a parent with a Residence Order has any greater power or control over the child. This is also why the term has changed to Child Arrangements Order to emphasise both parents have a role in bringing up children. However, a misconception is growing that shared parenting implies equality of time with each - it does not.
Contact, a term retained within the definition of a Child Arrangements Order
Is the time the child spends with the parent with whom he or she is not living or with others – usually extended family members. Contact can be:
- Indirect – telephone calls, Skype, Facetime, letters, postcards e-mails etc.
- Direct – time spent with the other parent or others.
- Staying – involves staying overnight with the other parent or family members.
It is important that whatever the relationship between separating parents the children should be shielded from any hostility or animosity and should not be involved in adult matters. However, it is also important their voices are heard by the adults whilst not investing in them the responsibility for making decisions as they do not wish to choose between either parent.
Resolution has put together a very good page for advice that can be accessed by clicking here.
Public Law – Care – Proceedings
These are where the Local Authority has concerns for the welfare of children and takes action to share Parental Responsibility with the parent(s). These can lead to children being removed from their home and placed for adoption although current approaches are to try and keep the child within their family. Increasingly, members of a child’s extended family such as grandparents, aunts or uncles will become involved and be considered as potential carers. Unhappily legal aid which is automatically granted to the parents without means testing in such proceedings - and which continues despite cuts in other areas - is not available to the wider family and involvement in such proceedings can be costly. We have experience of involvement in such proceedings in acting for parents and carers and can put together a package of representation designed to keep costs to a minimum, for example, just to prepare statements or to attend key hearings. Sometimes the Local Authority can be persuaded to contribute to the costs.
If you are concerned about a child in such a situation please get in touch to discuss how we may be able to help.
In All Cases
It is important to know what your rights are to start with so please give a call - 01726 68926 - to arrange a free discussion of how we may be able to help. If an application to the Court is necessary then we may be able to offer to do this at a fixed fee which could be paid by instalments and will explain and talk to you about this as well.