It is a sad relating that following the breakdown of any relationship, parents often need support in reaching an agreement as to the arrangements relating to the arrangements for the children going forward.
A person with parental responsibility must be consulted in all major decisions relating to the child, for example where the child should go to school, where the child should live, whether the child should be taken outside the UK and whether the child should have any medical treatment. Parental responsibility is defined in law as all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child and administration of his or her property. A mother automatically claims parental responsibility for a child, however, the father will only have parental responsibility if they are or have been married to the mother since the birth of the child or if after the 1st December 2003 they are named on the child’s birth certificate.
On occasion parents are able to reach an agreement between themselves on how best to care for the children. If an agreement cannot be reached, assistance may be required to decide what might be in the children’s best interests and how that can be managed between the parents. If an agreement cannot be reached, an application to the Court for a Child Arrangements Order (CAO) may be required.
The law to determine the arrangements for children after their parents separate is set out in the Children Act 1989.
The Children Act did away with concepts of “custody” and “access” and changed them to “residence” and “contact”. The terms have now been further changed and rather than labelling one parent with “residence” and one with having “contact” there is now simply an overriding concept of “child arrangements” providing for who the child ‘lives with’ and who they should ‘spend time with.’ However, the concept is still the same. If the arrangements for children cannot be agreed a Child Arrangements Order can be applied for to determine the arrangements.
The Court also has power to make two other types of Order, namely Prohibited Steps and Specific Issue Orders. A Prohibited Steps Order limits when certain parental rights and duties can be exercised. A Specific Issue Order contains directions to resolve a particular issue in dispute in connection with the child. A Prohibited Steps or Specific Issue Order could for example be obtained where there is a dispute as to the child’s education, determining whether the child can be taken abroad, or preventing a parent from seeing the child. The Court does not grant either of these Orders lightly. They are never granted in order to put unwarranted obstacles between a child and their parent.
The following four principles are given the highest priority:
- The children’s welfare is of the paramount importance.
- Any delay in sorting out the arrangements for the children is likely to prejudice the welfare of the children.
- The Court shall not make an Order unless it considers that doing so would be better for the children than making no Order at all. This is the No Order Principle. The Court will not make an Order if the parents can agree things between themselves.
- It is presumed, unless the contrary is shown, that involvement of both parents in the life of the child concerned will further the child's welfare.
The matters which need to be taken into account when determining the arrangements for any children are set out at Section 1 (3) of the Children Act 1989 and are known collectively as the “Welfare Checklist”. They are as follows:
- The ascertainable wishes and feelings of the child concerned (considered in the light of his/her age and understanding.
- His/her physical, emotional and educational needs.
- The likely effect on him/her of any change in his/her circumstances.
- His/her age, sex, background and any characteristics of his/her which the Court considers relevant.
- Any harm which he/she has suffered or is at risk of suffering.
- How capable each of his/her parents and any other person in relation to whom the Court considers the question to be relevant is of meeting his/her needs.
Our solicitors are experienced in making urgent applications to the court concerning any arrangements for the children and we are happy to discuss any concerns you may have regarding any of the above information with you at one of our fixed fee appointments.