Children

In England the concepts of custody, care and control and access were abolished in 1991 and since then there are now three main concepts in connection with children:

• Residence which provides for where a child should live.
• Contact which determines what contact the child should have with its parents and
• Parental Responsibility which is defined as "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has".

The court also has power to make four other types of order:

• Prohibited Steps Order which limits certain parental rights and duties e.g. not to take the child out of the country and
• Specific Issues Order which provides for particular steps someone is to take e.g. that the child will go to a certain school.
  When determining any question relating to the upbringing of a child Courts give paramount consideration to the child's welfare. It follows that the central question posed by Courts is "What is in the best interests of the child?"
• Adoption
• Special Guardianship

The Children Act 1989 sets out a number of factors that Courts should have regard to in trying to determine what is in the child's interests:-

(a) The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding.)

(b) His physical, emotional and educational needs.

(c) The likely effect on him of any change in his circumstances.

(d) His age, sex, background and any characteristics of his which the court considers relevant.

(e) Any harm which he has suffered or is at risk of suffering.

(f) How capable each of his parents and any other person in relation to whom the court considers the question to be relevant is of meeting his needs.

(g) The range of powers available to the court under this Act in the proceedings in question.

Courts will also have regard to the general principle that any delay in determining issues relating to the upbringing of a child is likely to prejudice the welfare of that child.

There is a presumption that the court should not intervene unless it is in the best interests of the child. Therefore the court will only make a formal residence order, or any other order, if there is a dispute, or if it is in the particular interests of the child to make an order nevertheless. So for example if on a divorce or civil partnership dissolution the parents agree that the children will live with the mother and spend alternate weekends with the father, the court will not make an order. On the other hand, if a child whose father has died lives with the mother and her new partner, the court may make a joint residence order in favour of both of them to provide that the partner also has parental responsibility.