Some frequently asked questions and guides on Children's Issues.
- What happens if my former partner and I cannot agree on arrangements for the children?
We will help you wherever possible to reach agreement with your ex-partner for your children's sake, by negotiation or agreement as appropriate. This might be about where the children live, how much contact they have with you both, how they will be provided for, and how decisions will be taken in future about things such as holidays and schools. In most cases parents will agree the arrangements for their children and the Court will not make any order- agreements are better than Court imposed settlements and are more likely to stand the test of time.
We will explain to you the alternatives to Court action, such as Mediation. If you have disagreements relating to the children, you should attend a meeting to find out if Mediation is appropriate before you apply for a Court order. In Mediation, you and your former partner will work with someone who is trained to help people sort out disagreements between themselves. We will be able to advise you on this, and help you to arrange the meeting.
Mediation may be inappropriate (for example if there has been domestic violence) and if Mediation is inappropriate or unsuccessful, an application can be made to the Court for a Child Arrangements Order under the Children Act 1989. The Court has to consider whether it should make one of the following orders:
- Child Arrangement Orders,
- Parental Responsibility Orders
- Specific Issue Orders
- Prohibited Steps Orders.
Such an application can also be made by unmarried parents.
- What does the court consider when dealing with such applications?
In dealing with such applications, the approach taken by the Court is governed by the principle that the children’s interests are paramount.
The Court must consider the factors set out in the welfare checklist as contained in the Children Act 1989:
- 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/hers 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 or any other person in relation to whom the Court considers the question to be relevant is in meeting his/her needs.
- The range of powers available to the Court under the Children Act in the proceedings in question.
No single factor within the checklist carries more weight than any other but in each case some factors may have more relevance than others.
- What is involved in the court application?
Once an Application is made, the Court will appoint a Children and Family Court Advisory and Support Service (CAFCASS) Officer to conduct a welfare check, prior to the First Hearing, which is known as FHDRA - 'the First Hearing and Dispute Resolution Appointment'.
The CAFCASS Officer will carry out checks with the police and local authority to find out whether there are any known safety or welfare risks to your children and telephone you and your former partner to find out if either of you have any concerns about the safety and welfare of your children. Before the first hearing CAFCASS will provide the court with a short report on the outcomes of the safeguarding checks and any phone interviews with you and the other party, this is known as a safeguarding letter.
At the First Hearing, the Court may direct both parties to file statements and may, depending on the nature of the dispute, also direct a report from a CAFCASS Officer. Once all evidence directed by the Judge has been filed, the Court will list the Application for a final hearing if no agreement has been reached in the meantime. The Court will ensure that decisions are made without undue delay. A Court will only make an order if it is better for the child than to make no order at all.
- What happens if the court makes an order and my former partner still wont allow me contact to the children?
Should a party not comply with a Child Arrangements Order, an application can be made to the Court to have the order enforced. The Court has various powers to enforce an order, including ordering the other parent to pay a fine, do unpaid work, pay compensation and even committal to prison. Sometimes a Court may consider changing who the child lives with if contact is not taking place.
If the Court considers it would be helpful, it can direct that the parents attend a parenting information programme (SPIP) to assist parents in understanding the impact of their separation on their children.
A Child Arrangements Order can have important implications on the future arrangements for a child and it is important to obtain specific legal advice on your circumstances before making an application to the Court or agreeing to a Child Arrangements Order being made.
- What other orders can the court make?
Parental Responsibility Orders: Parental Responsibility is a particularly important concern for dads. Parental Responsibility is defined by the Children Act 1989 and includes all the rights, duties and responsibilities which a parent has in relation to a child. This will include such responsibilities as decisions about medical treatment, which school the child should attend or religious upbringing.
- Any person with Parental Responsibility may make a decision about the child, but if there is more than one person with Parental Responsibility and they cannot agree, then a Court may need to decide for them.
- Who has parental responsibility? A mother always has Parental Responsibility for her child and cannot lose it, unless the child is adopted. A father who is married to the mother of the child will automatically have Parental Responsibility for that child.
- An unmarried father of any child whose birth was registered before 1 December 2003, will not automatically have Parental Responsibility and will need to acquire it by one of the methods set out below.
- An unmarried father who is named on a birth certificate of a child whose birth was registered after 1 December 2003, will have Parental Responsibility. This is not retrospective.
- How can I acquire Parental Responsibility? A father who does not have Parental Responsibility can obtain it by:
- Parental Responsibility Agreement. A simple form is completed, and then signed by both the father and the mother in the presence of a magistrate or Court official. Proof of identity is required. The form is then lodged with the Court.
- By the Court making a Child Arrangements Order specifying the child is to live with their father.
- By the Court making a Parental Responsibility Order.
For the Court to grant a Parental Responsibility Order it must be satisfied that it is in the children’s best interests. The Court will look at the commitment a father has shown to the child, the strength of attachment between the father and child and the reason for the application. Generally, a father who shows sufficient commitment to his child will usually be granted a Parental Responsibility Order. Step-parents and civil partners can also acquire Parental Responsibility through a Parental Responsibility Agreement, or the Court making a Child Arrangements Order specifying that the child is to live with them, or a Parental Responsibility Order.
The making of a Child Arrangements Order does not take away Parental Responsibility from people who already have Parental Responsibility. A Child Arrangements Order setting out who a child will live with can be made in favour of people who do not have Parental Responsibility. In such a case, that person will automatically acquire Parental Responsibility as well, but only for so long as the Order is in force. Parental Responsibility acquired in this way is subject to limitations.
- I am a Grandparent. Can I apply for an order in respect of a child?
Grandparents or other adults can, in certain cases, apply for a Child Arrangements Order. We can provide advice on this.
- Can the court make a shared residence order?
The Court does sometimes make an order for the child to live with more than one person. This used to be called shared residence. It does not necessarily mean that the child would spend equal time with each party. The Court has wide ranging powers and will tailor the order to meet the specific needs of each case.
A Child Arrangements Order is often made at the same time as a Specific Issue Order or a Prohibited Steps Order. These are less common orders but we can discuss these with you if necessary and provide appropriate advice.
The advice on this website is provided for general information only and is not intended to constitute legal advice. You should not act or rely on any of this information, but should seek legal advice on your particular circumstances. The law is always changing and affects each person differently. This information is no substitute for specific advice about you personally and we will not be liable to you if you rely on this information.
You’re welcome to contact us for an initial chat at no charge and with no obligation. It’s an opportunity to discuss your situation, run through your options and assess the likely costs involved. Call us today on 01277 631811 or use the contact form on our site for more information on how Dadds LLP Family Law Solicitors can help you.