The Children Act 1989 provides the legislation upon which private family disputes are based to assist resolution. If couples separate, they are encouraged by lawyers, Judges, and all intervening professionals, to resolve their differences as amicably as possible. There is an overwhelming understanding, that couples who can work out a routine and arrangement for their children amicably, provide a rosier and more well balanced future for their children. Only if all else fails, will the Courts welcome an application from either parent to assist in working out the fundamental arrangements for the children. The two most common applications made are:
- Where the children are to live ('the residence of the child')
- How often the children see each parent ('contact').
Other applications to Court for orders include 'specific issue' and 'prohibited steps' applications. An example of a specific issue application is deciding which school a child is to attend if the parents cannot agree as to what is in the child's best interests for their education. An example of a prohibited steps application is to ask the Court to stop a parent from doing something like moving abroad.
Parental responsibility
This is a concept giving parents the right in law to have a say in the fundamental decisions in their children's lives. Issues regarding health, education, religion, their potential change of name, and consent to a child's marriage post 16, all feature. The concept of Parental Responsibility Applications will be less of an issue for parents of children born after the 1 December 2003 due to changes in law.
Mothers automatically have Parental Responsibility of their child unless deprived of this through local authority or care proceedings. Fathers also have Parental Responsibility if married to the mother at the time of the child's birth, or if they were named on the birth certificate of a child who was born after the 1 December 2003.
CAFCASS officer
Longer running disputes at Court often necessitate the assistance of the Court and Family Welfare Officer, known as a CAFCASS Officer. They assist the parties at the initial Court appointment in the County Court or Family Proceedings Court. These Court officers are sometimes commissioned to assist the Court through the writing of a welfare report. This can take between 10 to 12 weeks to prepare. The Court reporters can work with families and liaise with Social Services and the children's school if appropriate.
Court welfare checklist
In coming to a decision as to what is in the child's best interests, the Court must take into consideration the welfare checklist which again is laid down by statute. In coming to a decision, a Judge must consider the following:
- The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)
- The child's physical emotional and educational needs
- The likely effect on the child of any change in their circumstances
- The child's age, background and any other characteristics which the Court considers relevant
- Any harm which the child has suffered or is at risk of suffering
- How capable each of the child's parents and any other guardian are of meeting their needs
- The range of powers available to the Court under the Act in the proceedings in question.
Once the Court has made an Order, then this usually lasts until the child is aged 16, unless there are exceptional circumstances.
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