If your relationship has broken down and you are having difficulty agreeing arrangements for your children, court proceedings may not always be necessary and should be a last resort. We will first try to help you resolve any dispute through negotiation or mediation. If court proceedings become necessary then we can help you prepare your application, any statements you are required to make and can arrange for expert reports if necessary, such as DNA testing or medical reports. We can guide you through the court process and arrange for you to be represented at any hearings.
If you are acting for yourself we are happy to provide you with advice from time to time or to help you prepare documents so that you can keep your costs to a minimum.
When a relationship breaks down it is hoped that agreement can be reached between the parties about the arrangements for the children. If children are caught up in conflicts it can be very damaging for them in the long term. The courts do not generally intervene unless there is a dispute which cannot be resolved.
If agreement cannot be reached, before resorting to court action, family mediation is another way that issues of dispute may be resolved. A mediator is a neutral person who is trained to listen to both parties involved in a dispute and to try to help them resolve their differences. Although any decision is not legally binding, if agreement can be reached this is a much quicker, less formal and less costly way of resolving issues.
Under The Children and Families Act 2014 it is now a requirement for a person to attend mediation unless certain expemtions apply. These include:
If there is a dispute that cannot be resolved by agreement then parents or family members can ask the court to make decisions on their behalf. The court does this by hearing evidence in the form of statements, expert reports etc and then making orders which bind both parties. In making a decision, the paramount consideration of the court is the welfare of the child and there is a checklist of things that must be considered.
(a) the ascertainable wishes and feelings of the child concerned in light of their age and understanding;
(b) their physical, emotional and educational needs;
(c) the likely effect on the child of any change in circumstances;
(d) the age, sex, background and any characteristics of his/her which the court considers relevant;
(e) any harm which he/she has suffered or is at risk of suffering;
(f) how capable each of his or her parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his or her needs;
(g) the range of powers available to the court under the Children Act in the proceedings in question.
The court will also take into account the child’s wishes and feelings. The older the child, the greater the significance of their views.
Some of the orders that the court can be asked to make in relation to children are set out below.
The mother of a child automatically has parental responsibility. A father will only have parental responsibility automatically if he is married or has been married to the mother at any time since the child was born, or, in the case of a child born after 1st December 2003, where he is named as the father on the child’s birth certificate. Subject to the exception above an unmarried father can only obtain parental responsibility by agreement of the mother or by court order.
A parent without parental responsibility will not have the legal authority to make decisions in relation to their children and professionals such as teachers and doctors have no obligation to provide them with information about their children.
Step-parents can acquire parental responsibility by agreement with both parents with parental responsibility and people other than parents who look after a child, such as grandparents, other family members or a local authority, can be granted parental responsibility by court order.
Where children are cared for by people other than their parents, such as grandparents or other family members, they do not have parental responsibility. They can make an application for a child arrangements order to give them parental responsibility and to grant an order dealing with the fact that the children are to live with them. Same sex partners who have children, or step parents who do not automatically have parental responsibility can acquire it by applying to court for a child arrangements order.
Child arrangements orders, introduced by The Children and Families Act 2014, now deal with the arrangements as to with whom a child is to live, spend time or otherwise have contact and where a child is to live, spend time or otherwise have contact with any person. They replace the old residence and contact orders.
The court will presume that the involvement of each parent in the life of the child will further the child’s welfare, even where one parent has real inadequacies. In cases where there is domestic violence or there is a risk of child abduction, the child can still spend time with the parent, at a contact centre where it can be supervised to eliminate any risk of harm. In exceptional cases, if it is considered that a child would be at risk of harm, whilst spending time with a parent, the court may consider that contact should be indirect, that is by way of cards or letters. The government stopped short of introducing a presumption of shared parenting to ensure that the Act did not imply that the parents had “rights�? in respect of arrangements for the child.
There is no set rule as to how much time a child should spend with each parent. This will depend upon the circumstances of the parties, for example, work commitments, distance they live from each other, any specific needs or wishes of the child or children, etc.
Others such as grandparents or relatives may also apply for child arrangements orders, as they would have done under previous legislation, for residence and contact orders.
This is an order preventing a person from taking a step in meeting their parental responsibility for a child without permission of the court. The order can be made on its own or in conjunction with a residence or contact order. The order must specify the step or steps that are prohibited. For example, an order may prohibit a parent from taking the child to a specific location or changing the child’s surname.
The court has the power to make a decision about a specific issue arising in relation to the exercise of parental responsibility. This would include decisions about medical treatment, choice of schools, religious upbringing etc.
This is an order determining where and with whom a child should live. Residence orders have now been replaced by child arrangements orders. It is hoped that the change in terminology will emphasise the fact that both parents have an equally important role to play in the child’s life and neither is a second class parent.
This type of order was made where one parent was the main carer and the absent parent sought more contact than could be agreed between the parties. Contact orders have also been replaced by child arrangement orders.
There may be occasions where an issue arises which require an urgent application to court in order to protect the safety of a child. An application can be made without giving notice to the other party where there is a genuine emergency. The application will be supported by a statement giving the reasons for the urgency and the matter will be heard on the day of the application. The Judge may make an interim order and will list the matter for a second hearing when the other party will be given the opportunity to put their side of the situation.
The court may decide that, although the issue is urgent, it is not sufficiently urgent to warrant the matter being heard without the other party being present. The Court will list the hearing allowing a short delay so that the other party can be made aware of the proceedings so that they can attend if they wish.
A special guardianship is considered to be a halfway house between an adoption and a child arrangements order/residence order. Special guardianship gives a greater perception of permanency than a child arrangements order/residence order, but does not provide finality as does an adoption.
A special guardian must be over 18 years of age and must not be a parent of the child. An application for special guardianship can be made by :-
A special guardian will share parental responsibility with those who already have it, unlike adoption, where the birth parents will lose parental responsibility. Special guardians are able to exercise parental responsibility to the exclusion of others with parental responsibility. Unlike non parents, with a residence order/ child arrangements order, a special guardian can appoint a guardian for the child in the event of their death.
A special guardian may not, however, change a child’s surname or take them out of the country for more than three months without the written consent of all those with parental responsibility. Special guardians cannot consent to adoption of the child.
Special guardianship orders offer an alternative to long term foster care. It provides more security and stability for the child and removes the stigma of being in care. At the same time it allows the special guardian access to a range of support services to assist in caring for the child.
Grandparents very often play a crucial part in the upbringing of children. As well as the special relationship they have as grandparents, they often provide child care support and financial support and become an integral part of the family.
When a relationship breaks down children can, quite suddenly, be stopped from spending time with them, particularly where one of the parents stops or curtails contact with the other parent. This sudden forced separation is distressing for the children and causes much sadness and worry for the grandparents.
Where the amount of time spent with the child is agreed, it is usually sorted out through negotiation or as part and parcel of the absent parent’s contact. This can often be far from satisfactory.
If the contact is stopped or curtailed, grandparents may, with permission of the court, apply to court for a child arrangements order allowing the contact to begin again or to extend the amount of time the children spend with them.
Now that there is an increasing recognition of the benefit to children of maintaining contact with their grandparents, the courts are looking at children cases in light of the wider issues involved, rather than placing the main emphasis on the idea that a child is better being brought up by its natural parents.
It is also sometimes the case that grandparents have to step in and become the main carer of their grandchildren when the parents are unable to provide adequate care, for example where there is drug or alcohol abuse. An application to court for a child arrangements order or special guardianship order is likely to be necessary in such cases as it will provide them with the legal authority to make decisions on behalf of the child so that they can properly care for the children and it will afford them and the children security, in that everyone will be clear about their role in relation to the upbringing of the children.
We specialise in acting for parents, grandparents or other family members. We know how to act promptly by making an emergency application to court in cases where there is a serious concern about the safety and welfare of a child.
We have also dealt with more complex cases, such as multi party, high profile care cases, cases with an international element and Schedule 1 Children Act applications.