Children’s law, parental & grandparental advice

Following the breakdown of any relationship, parents often need support in reaching an agreement relating to future arrangements for the children. It’s a stressful time for all, but here at Mayo Wynne Baxter we can help.

We offer expert child law guidance and advice, covering parental and grandparent law.

Our specialist children’s solicitors look after clients across Sussex, with offices in Brighton, Chichester, Crawley, Eastbourne, East Grinstead, Lewes, Peacehaven, Seaford and Storrington, as well as London.

Parental responsibility and parental law

The law defines parental responsibility as: 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 obtains parental responsibility for a child. However, the father will only have automatic parental responsibility if they are or have been married to the mother since the birth of the child, or if after 1 December 2003, they are named on the child’s birth certificate.

The law states that a person with parental responsibility must be consulted on all major decisions relating to the child. This includes everything from where the child should go to school to where they should live, whether they can be taken outside the UK and whether they should have any medical treatment.

Sometimes parents are unable to reach an agreement between themselves on how best to care for the children, so you may need legal help from a specialist familylawyer to decide whatis in their best interests and how that can be managed between you. You may also need to apply to the Court for a Child Arrangements Order (CAO).

Children’s law and the Children’s Act

The law to determine child arrangements is set out in the Children Act 1989. The Children Act removed concepts of child “custody” and “access” and changed them to “residence” and “contact”.

The terms have now been changed further to an overriding concept of “child arrangements”, providing for who the child “lives with” and who they should “spend time with.”

If you can not agree on arrangements for your children after separation, you can apply for a Child Arrangements Order, which will define the arrangements for you.

Parental court orders

The court has the power to make two other types of parental court order: Prohibited Steps and Specific Issue Orders.

• A Prohibited Steps Order limits or prevents 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.

For example, either of these could be obtained where there is a dispute in respect of a number of issues including involving the child’s education, or medical treatment.

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.

When making an Order, the following four principles are considered:

1. The children’s welfare is of paramount importance.
2. Any delay in resolving arrangements for the children is likely to prejudice the welfare of the children.
3. The court will 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.
4. It is presumed, unless the contrary is shown, that involvement of both parents in the child’s life will further their welfare.

The Welfare Checklist

What needs to be taken into account when determining child arrangements is set out in Section 1 (3) of the Children Act 1989. They are known collectively as the “Welfare Checklist”.

They are:

1. The ascertainable wishes and feelings of the child concerned (considered in the light of his/her age and understanding).
2. Their physical, emotional and educational needs.
3. The likely effect on them of any change in circumstances.
4. Their age, sex, background and any characteristics which the court considers relevant.
5. Any harm which they have suffered or are at risk of suffering.
6. How capable each of the child’s parents is of meeting their needs. The same question can be applied to any other person who the Court believes is relevant.

Our specialist child lawyers are experienced in making urgent applications to the court concerning arrangements for children.

Grandparental law and legal advice

Grandparents can play a huge and significant part in their grandchildren’s lives and many have become accustomed to caring for their grandchildren while their parents are at work.

If parents separate or there is a family dispute, grandparents can often end up losing touch with their grandchildren. Sometimes a parent will want to cut off all contact with their former partner – and that can include their wider family too. In other instances, the local authority may become involved.

Children need to know their grandparents to learn about themselves and their family background and suddenly losing contact with grandparents can cause children a lot of distress. When this happens all efforts should be made to negotiate with the parents or local authority, with the primary consideration being the welfare of the child.

As a last resort, if negotiations fail, grandparents should be aware that they can, in some circumstances, make an application to court.

In most cases, grandparents will need to obtain permission from the court before they can make an application to have contact with their grandchildren. As the law stands, there is currently no presumption in favour of grandparents obtaining permission.

When deciding whether or not to grant permission the following will be considered:

1. The nature of the application. The court will need to consider whether the motivation behind the application is in the child’s best interests.
2. The grandparent’s connection with the child.
3. Any risk of the application disrupting a child’s life to such an extent that the child would be harmed. With this in mind, the court needs to consider the level of disharmony between the grandparents and the child’s parents.
4. If the child is being looked after by a Local Authority, the Local Authority’s plans for the child’s future and the wishes and feelings of the child’s parents.

If permission is granted, then whether or not the application to have contact with the child is successful will depend on:

1. The ascertainable wishes and feelings of the child concerned (considered in the light of his/her age and understanding).
2. The child’s physical, emotional and educational needs.
3. The likely effect on the child of any change in their circumstances.
4. The child’s age, sex and background and other relevant characteristics.
5. Any harm which the child has suffered or is at risk of suffering.
6. How capable the grandparents in question are of meeting the child’s needs.