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Family Matters - CHILDREN       01223 415372

Often the innocent victims of family breakdowns are children and it can be a worrying and distressing time for all parties concerned.

Parental Responsibility

Parental Responsibility is the rights, duties, powers and responsibilities that a parent has in relation to their child. Parental responsibility entitles the parent to become involved in decisions concerning a child’s schooling, religion and medical treatment. All mothers automatically have parental responsibility however it is a different case for fathers who will only automatically have parental responsibility in the following cases:

  1.  If he is married to the child's mother, even if the marriage is after the child's birth.

  2.  If he jointly registers the child's birth with the mother, is named as the father on the birth certificate and the child is born on or after December 1st 2003.

  3.  If the mother agrees that the father should have Parental Responsibility and a parental responsibility agreement is filed at Court.

  4.  If the court orders that the father should have Parental Responsibility. This is typically the case if the mother does not agree to the father having Parental Responsibility.

  5.  If the father has a Residence order in his favour.

It is possible for a Step-parent to acquire parental responsibility, either by entering into a Step-Parental Responsibility Agreement, or by applying to the Court. In order for a Step-parent to be able to enter into a Step-Parental Responsibility Agreement, everyone who currently has parental responsibility for the child is required to be a party to the agreement.

Child Arrangements

Child Arrangement Orders were introduced in April 2014. These Orders replace the old Orders for Contact and Residence.

The aim is to remove the harshness of the previous Orders and to encourage parents to look at the problem from the children’s point of view, rather than concentrating on what the parents themselves want. The words ‘contact’ and ‘residence’ are no longer used. It is hoped that this will make the issue less of a battleground for the parents. The Order will reflect the reality of where the child spends the majority of their time, and the amount of time the child spends with each parent.

Extensive research has shown that it is usually better for a child to spend time with and know both parents and that it can in fact be emotionally harmful for a child to grow up not knowing one or other parent. The potential harm caused to the child may not manifest itself until the child reaches adulthood and can affect their ability to form lasting relationships, or even to achieve their full potential in their chosen career. The starting point for the Court therefore will be that the child should spend time with both parents unless there is a serious risk that a parent may cause the child harm when they are in their care. Even then, the Court will try to ensure that the child sees their parent within a safe environment.

A Child Arrangements Order, although worded less harshly than the old Contact and Residence Orders, is no less enforceable.

Specific Issue

It may be the case that parents are unable to agree on a specific issue relating to the child, for example where the child should go to school, whether a child should be allowed out of the country for a particular event/holiday etc. It is possible to ask the Court to rule on issues such as these and measures can be put in place to take account of the other parent’s concerns.

Prohibitive Steps

A prohibitive steps order will prevent a parent from doing something with the child which the other parent does not agree should happen. For example, a prohibitive steps order could deal with a scenario where one parent wants to engage with the child in a dangerous activity and the other parent objects. If the Court believes it is the child’s interests, a prohibitive steps order can specify that the child is not to engage in the activity.

Removal from the Jurisdiction

Sometimes a parent will wish to relocate abroad for a variety of reasons and will want to take the child with them. No-one is entitled to permanently remove a child from the jurisdiction of England & Wales without the consent of all people with parental responsibility, or order of the Court. If the parent wants to take the child out of England and Wales, then a Specific Issue Order should be applied for requesting the courts permission for removal of the child from the jurisdiction. If various criteria are met, then the Court is likely to grant the Order.

In any of the above disputes, the children’s welfare is the “paramount” consideration. It is the first consideration and the paramount consideration because it rules upon or determines the course to be followed. The court will examine all the relevant facts, relationships, claims and wishes of the parents, risks, wishes and feelings of the children (depending on their age and maturity) and any other relevant circumstances.

“Welfare” is an all-encompassing word. It includes material welfare, both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in a sense of adequacy of care to ensure that good health and personal pride are maintained. However, whilst material considerations have their place, they are secondary matters. More important are the stability and security, the loving understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child’s own character, personality and talents.

There is a statutory checklist to which the Court must regard in opposed proceedings for a making, variation or discharge of the above orders and those are:

  1. The ascertainable wishes and feelings of the child concerned (considered in the light of the child’s age and understanding).

  2. The child’s physical, emotional and educational needs.

  3. The likely effect on the child of any change in circumstances.

  4. The age, sex, background and any characteristics of the child which the Court considers relevant.

  5. Any harm which the child has suffered or is at risk of suffering.

  6. The capability of each parent and any other person in relation to whom the Court considers the question to be relevant, of meeting the child’s needs.

  7. The range of powers available to the Court under this Act in the proceedings in question.

The advantage of a checklist is that it will in an orderly way direct attention not only of the Court but also of those involved in operating the law whether it be a legal adviser or the Children and Family Court Advisory and Support Service (‘CAFCASS’) Officer when investigating the circumstances and preparing a report and in the longer term the use of checklists may promote uniformity of standards and practice throughout all courts.

Child Maintenance

Child maintenance is a payment made by the parent who does not have main day to day care of your child to the parent who has main day to day care. You can reach an agreement between yourselves or alternatively you can use the Child Maintenance Service (CMS). A comprehensive guide relating to child maintenance can be found at: www.nidirect.gov.uk/child-maintenance

If the CMS cannot deal with Child Maintenance an apllication can be made to the court.

You may now be aware that the CMS (previously the Child Support Agency) are going to start charging for their services. There will be a one-off fee of £20 payable by most applicants (there are a few exceptions). Then if the CMS are involved in collecting the child maintenance, they will charge the payer an additional 20%, and they will take 4% from the amount the receiving party should be getting. If you would like us to help you negotiate a fair agreement with your former partner, please call for an initial free consultation.

 Please call or email Bridget Giltinane on 01223 415372 or bridget.giltinane@smslaw.co.uk for initial free advice or alternatively to book an initial free appointment.


If you would like legal advice then please call or email our family lawyer, Bridget Giltinane on 01223 415372 or bridget.giltinane@smslaw.co.uk for initial free advice or alternatively to book an initial free appointment.

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