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Inevitably, many disputes surrounding relationship breakdowns involve children. We can explain the law relating to parental responsibility, your rights and those of the children involved.
The Children Act 1989 (the Act) provides the legislative framework to resolve family disputes relating to children. It covers issues formerly referred to as child custody, fathers’ rights and much more.
Parental responsibility recognises your rights as a parent to influence key decisions made on behalf of your child, including those about the health, education, religion. Generally, a mother automatically has parental responsibility and it is granted to a father if:
- They were married to the mother at the time of the child’s birth
- They marry their child(ren)’s mother after the child(ren) is born
- They were named on the birth certificate of a child born after 1 December 2003.
In deciding on who a child lives with following a separation or divorce, the Courts will only get involved if the parents cannot agree arrangements between them. Financial maintenance arrangements are usually required of the parent not living the with the child, based on their income and the number of overnight stays the child has with them.
Living arrangements (formerly residence/child custody)
The Courts will only get involved in a child’s living arrangements if the parents cannot agree on residence i.e. where the child(ren) is to live. More latterly, fathers’ rights and joint custody have been referred to by the terms ‘contact’ and ‘residence’ respectively. Again, if parents cannot agree on how to arrange contact then the Courts will get involved and make the decision for them. These orders are known as Child Arrangement Orders and confirm where a child shall live and how they are to spend time with the other parent.
Specific Issue Court Order applications can be made to require a parent to do a specific thing, such as deciding which school a child is to attend. Prohibited Steps Orders require a parent to refrain from doing a specific thing, such as moving a child abroad.
Court welfare checklist
The Court will only make an Order under the Children Act if it’s in the child’s best interest. The Court must consider issues laid out in the welfare checklist:
- The ascertainable wishes and feelings of the child concerned (considering his age and understanding)
- The child’s physical, emotional and educational needs
- The likely effect on the child of any change in their circumstance
- The child’s age, background and any other characteristics the Court considers relevant
- Any harm which the child has suffered or is at risk from suffering
- How capable each of the child’s parents or guardians are of meeting their needs
- The range of powers available to the Court under the Act
Longer running Court disputes may require the help of the Court and Family Welfare Officer (CAFCASS). They assist the parties at the initial appointment in the Family Court. They are sometimes commissioned to assist with the writing of a welfare report. Once the Court has made an Order, then this usually lasts until the child is aged 16, unless there are exceptional circumstances.
Parents with parental responsibility are responsible for maintaining their child(ren). Maintenance or support is usually required from the parent who is not living with their child(ren). Generally, the calculations for maintenance are fairly straightforward and based upon percentage of income and the amount of overnight stays each child has with the non-resident parent. However, we strongly recommend taking legal advice if you have problems getting maintenance for your child(ren).