Children

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Children

The courts encourage parents to agree decisions relating to their children if at all possible. If agreement cannot be reached, either parent can apply to the court for one of the following orders relating to the children:

residence - who the child is to live with
contact order - how often and on what terms a child should see the parent with whom the child does not live
specific issue order - to decide a specific question in connection with the parental responsibility for a child, or
prohibited steps order - to prevent a specific step being taken by a parent without the permission of the court.

On any application involving children’s issues, the court must decide what is best for the child. The child’s welfare is the paramount consideration but the court must also take into account a number of factors including:

the child’s wishes - taking into account their age and understanding
the child’s physical, emotional and educational needs
how capable each parent is of meeting the child’s needs
the effect of change on the child, and
the child’s age, sex and background.

If an application to the court is necessary, the court will set a timetable of things that the parties must do before any final decision is made. This will usually involve the exchange of witness statements by both parents (setting out each parent’s views) and the appointment of an independent specially trained CAFCASS Officer. This person, known as a Child and Family Reporter, will usually be asked to interview all relevant people, including the children, and then prepare a report for the court.

The Child and Family Reporter’s report will contain recommendations about what should be done. Usually the court will follow those recommendations, since the role of the Child and Family Reporter is to provide an objective and independent opinion to the court about the issues in the case.

After the report has been prepared, the judge will encourage the parties to discuss the case to see if agreement can be reached. If that is not possible there will be a final hearing at court and the judge will make a decision.

The court can also decide who is to have parental responsibility for a child. The person with parental responsibility is able to make any major decision in a child’s life. This includes decisions on religion, education, consent to an operation, the child’s name, etc. If the child’s parents were married they share parental responsibility equally. If the parents are not married, the father can have parental responsibility if he is named on the child’s birth certificate (for children born on or after 1st December 2003), if the parents enter into a 'parental responsibility agreement' or by order of the court.

On an application for parental responsibility the court will look at what commitment the father has shown towards the child, the degree of attachment between him and the child and the reason he is applying for the order. When deciding a case the court must also take into account all the relevant circumstances, bearing in mind that the welfare of the child is paramount.

Frequently Asked Questions about Children

If we agree on where the children should live and the level of contact, does our case have to go to court?

No. The court has a non-intervention policy, believing that parents are usually best placed to make arrangements for their children. Therefore the court will only get involved if there are child protection issues or if the parties are unable to agree matters.

Who has parental responsibility for a child?

A child’s mother will almost invariably have parental responsibility for a child. A father has parental responsibility if he was married to the mother or, for a child born on or after 1st December 2003, he is named on the birth certificate at registration, or the birth is re-registered in a prescribed manner.

A father can acquire parental responsibility by a parental responsibility order being made in his favour or by entering into a parental responsibility agreement with the mother, provided that agreement is made in the proper form and is properly registered. Where the court makes a residence order in favour of an unmarried father, it must also, if he would not otherwise have parental responsibility for the child, make a parental responsibility order.

Legally appointed guardians will have parental responsibility for a child as will any person who is not the parent or guardian of the child but who has a residence order in their favour.

Local authorities acquire parental responsibility for a child on the making of a care order, which is then shared with the mother (and father if he has parental responsibility).

From December 2005 a step parent has been able to acquire parental responsibility for a child of his spouse by agreement between the step-parent and the parents who have parental responsibility for the child, or by order of the court.

Anyone with parental responsibility can apply, as of right, to terminate another person’s parental responsibility and a child can apply with permission of the court, but the court will only grant such an application in extremely rare circumstances.

What power does the court have to enforce orders?

If there is a defined order for contact then, depending on the nature of the breach, the court might vary the terms of the order. Alternatively the court may attach a penal notice to the order, which means that a breach of the order may ultimately be punished by imprisonment. On such an application the welfare of the child is a relevant factor but is not paramount. However, it will rarely be appropriate to send a parent to prison and such an order will only ever be made as a last resort.

Will the children have to go to court?

No. The court has a duty to take into account the wishes and feelings of the child, in light of their age and understanding. However this is done by appointing a Child and Family Reporter to report to the court on what they believe is in the best interests of the child. The Child and Family Reporter will meet with the child/children and if they are of an appropriate age, take their views which will then be included in the report to the court. The wishes of the children are only one factor which the court has to consider when making an order but the older a child is, the more weight is likely to be given to their views. Only in very exceptional circumstances will the child have to go to the court.

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