Arrangements for children are often agreed between the parents, sometimes with the help of a mediator or by negotiation through lawyers. Under the Children Act 1989, the Court will only make a formal order if there is a dispute – otherwise no order will be made. There is also a presumption that the Court should not intervene unless it is in the best interests of the child.
The Children Act 1989 deals with parental responsibility, residence, contact, prohibited steps and specific issues relating to children.
English law is very child-focused in its approach to family breakdown. The welfare of the children is the courts paramount concern. It is hugely important that parents communicate with one another at all times and about all matters relating to the children.
Parental Responsibility - this encompasses all the rights and duties a parent has in respect of a child. This involves making decisions about schooling, religious upbringing and medical treatment a child should have. Both parents automatically have parental responsibility if they are married, unmarried fathers can acquire parental responsibility by being named on the birth certificate, by agreement with the mother or by application to the court.
Residence - is where the children live on a day-to-day basis. Residence can be joint if the children spend equal amounts of time with each parent. It is important that the children regard both parents’ properties as “home”.
Contact - the law states that it is a child’s right to see both parents and to enjoy regular direct contact (face to face, staying overnight, holidays etc) and indirect contact (telephone calls, e mails etc). Often a timetable for contact can help with household routines, but flexibility and co-operation is always encouraged. Certain times of the year are very important and need special consideration with children perhaps spending alternate years with each parent.
Prohibited Steps - this limits certain parental rights, for example preventing a child being taken abroad. This is a rare and drastic step to take and courts do not grant them lightly.
Specific Issue - this is an order that resolves a particular disputed issue between the parents concerning a child, for example where a child is to be educated. Again this is a rare application.
When considering the best interests of a child, the court will have regard to:
- The child’s wishes a feelings considered in light of their age and understanding
- The child’s physical, emotional and educational needs
- The likely effect on the child of changes in circumstances
- The child’s age, sex and background together with any other characteristic that the court considers to be relevant
- Any harm that the child has suffered or is at risk of suffering
- The parents’ capabilities of meeting the child’s needs (this can also apply to any other relevant person, for example the parents new partner)
- The range of powers available to the court to deal with the matter.
If the court has to become involved in decisions about the arrangements for children then the first step will be a conciliation hearing to see if there is any possibility of reaching agreement. If this does not work, then the court will set a timetable to progress the case. This will include:
- Both parents filing and exchanging statements setting out their respective cases
- A CAFCASS (Children and Family Court Advisory and Support Service) officer preparing a report making recommendations as to what order should be made
- A further directions hearing to see if agreement can be reached in light of the CAFCASS recommendations
- As a last resort, a final hearing will be set and the judge will decide the matter.
It is always advisable to have important legal documents drafted by an experienced lawyer. At Prince Evans we can advise you and guide you through this process and prepare skilfully drafted documents reflecting your instructions and requirements. Please contact Elizabeth Kornat for further information.
This material does not give a full statement of the Law. It is intended for guidance only and is not a substitute for individual professional advice. Prince Evans can accept no responsibility for loss occasioned as a result of any person acting or refraining from acting.
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