A Guide to Children Law
Parents should be aware that the law states that it is the right of a child to have contact with both their parents and not the other way round. Although a child has such a right and the wishes and feelings of a child are important considerations, a child’s views should be kept in proportion with the age and understanding of each child. The wishes of an older child will carry greater weight than those of a younger child because of their age and maturity. Having said that, it is important to establish the children’s wishes and listen carefully to them. This does not mean that the children get to dictate where they live and when they see their parents.
The Children Act 1989 changed the arrangements relating to “custody, care and control”, and “access”, as they used to be called. The Act introduced three new arrangements in connection with children namely, residence, contact and parental responsibility. Although the Act is over 20 years old, people still tend to use the old terminology although, broadly speaking, they mean the same thing.
A residence order will determine where a child is to live although in practice no orders are made as to residence unless it is necessary to make such as order. A child can live with either their mother or their father on a full-time basis and have contact with the non-resident parent. In such circumstances the resident parent would make the child available for contact with the non-resident parent.
Residence of a child can also be shared between the parents. The extent of shared residence can be agreed between the parents or ordered by a Court. For example the child could spend one week with one parent and one week with the other or alternatively half the week with one parent and the other half with the other parent. It would depend on what works in the child’s best interests. A child requires consistency and therefore it always best to have a defined routine in place should shared-residence be ordered or agreed between the parents.
A contact order sets out the types of contact between the child and non-resident parent and the frequency of it. There is no defined amount of contact that a non-resident parent should have with a child. It can be daily, weekly, fortnightly, monthly or even annually. In addition contact can be face to face or not face to face, meaning contact via letter or telephone. Another consideration to take into account is whether face to face contact should include overnight contact. The frequency, length and type of contact will differ depending on what is in the best interests of each child. Parents can agree a contact routine but if agreement is not possible an application can be made to the Court for their assistance and an Order can be made.
There does need to be a degree of flexibility with contact in that a child’s obligations can change. For example a child may be required to adhere to school fixtures, homework must be completed and they should be allowed to participate in school and social events. A proper balance needs to be kept as regards the children’s right to see each parent and their school and social requirements.
Parents need to agree holiday contact with each other. For example, parents should not make bookings or arrangements without first having consulted with one another and agreed dates.
Parents also need to address who is to have contact with the child on their birthday, Christmas Day and during Easter. One option is alternate contact between the parents and the child on birthdays and festivals on an annual basis.
An important and often the most critical point to establish with children matters is whether the father has parental responsibility for his children. A mother automatically has parental responsibility. Parental responsibility encompasses all the rights and duties which a parent has regarding a child, including the right to decide where the child should go to school, what form of religious upbringing the child should have and what medical treatment the child should receive. In practice, it can often mean that schools, doctors, hospitals, social services and other organisations may not deal directly with a father unless he has parental responsibility. In order to ascertain whether a father has parental responsibility he has to fulfil one of the following criteria:
- Married the child’s mother
- If the parents are not married, the parents jointly registered the child’s birth if the child was registered after 1 December 2003.
- Obtain parental responsibility through a parental responsibility agreement with the child’s mother. In circumstances where the mother agrees to the father having parental responsibility a simple agreement can be drawn up between the parties. The agreement must be signed by both the mother and the father in the presence of independent witnesses. Once signed and witnessed the form must be lodged with the Court.
- Obtain a Court Order giving the father parental responsibility.
Parental Responsibility Agreements are relatively simple to draft and register. Should you require a parental responsibility agreement or assistance with an application for a Court Order, Stafford Young Jones would be happy for advise you and assist you with the process.
A prohibited steps order
A prohibited steps order limits when certain parental rights and duties can be exercised.
A specific issue order
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 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.
When making an Order the court will give the following three principles the highest priority:
1. The children’s welfare is of the paramount importance;
2. The court shall have regard to the general principle that any delay is likely to prejudice the welfare of the children; and
3. 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.
In deciding whether an order should be made, the court will have regard to:
(a) the ascertainable wishes and feeling of the child concerned (considered in the light of the child’s age and understanding);
(b) the child’s physical, emotional and educational needs;
(c) the likely effect on the child of any change in his/her circumstances;
(d) the child’s age, sex, background, and any other characteristic which the court considers relevant;
(e) any harm which the child has suffered or is at risk of suffering;
(f) how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs;
(g) the range of powers available to the court under the Children Act in the proceedings in question.