When parents separate, sadly it is the children who often suffer the most. As solicitors who specialise in children matters, we know how much your children’s unhappiness matters to you. We are here to help.
This is one of the most difficult areas of Family Law and one where particular skills are required to resolve issues with the minimum of conflict.
Our aim, as always, is to get you the best possible outcome.
We deal with a whole range of children issues such as:-
- Residence/child’s living arrangements
- Child’s contact arrangements
- Parental responsibility
- Changing child’s name
- Child abduction
- Permission to relocate abroad
Children disputes are not limited to parents. We can also advise you if you are a step-parent, relative or carer.
Here are GWBHarthills we recognise that disputes in relation to children are emotive and close to your heart. We understand that these issues are the most important throughout a separation/divorce. Our lawyers are highly experienced and skilled at dealing with these sensitive and important issues and we pride ourselves in dealing with cases sympathetically.
Should require any advice regarding children issues please contact us.
What is the law regarding children disputes?
The law relating to children is mainly in the Children Act 1989. This details what sort of Orders a Court can make.
“Custody” and “Access” were abolished in 1989 and the Court can now make Residence Orders, Contact Orders, Prohibitive Steps Orders or Specific Issue Orders.
A Residence Order is simply an Order that states who a child should live with or where a child should live.
A Contact Order says who a child is allowed to see or receive letters, telephone calls or other communication from.
Prohibitive Steps Order are Orders which prevent people from doing a certain thing with a child for example taking a child abroad without obtaining the consent of the Court. A common Prohibitive Steps Order would be to prohibit a child from being removed from the care or control of a parent by the other parent except for times specified within the Contact Order.
A Specific Issues Order is an Order that sets out precisely how a particular question about a child should be handled. The most common example for this is what school a child should attend.
Parental responsibility is defined as, “all the rights duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child and his property”.
In reality, it includes the right to decide where a child should go to school, what form of religious upbringing the child should have and what medical treatment the child should receive. It often means that schools, doctors, hospitals and Social Services and other organisations may not deal with anybody directly unless they have parental responsibility.
A child’s mother automatically has parental responsibility. A child’s father only has parental responsibility if he was married to the child’s mother at the date of the birth; or subsequently married; or on the child’s birth certificate if the child’s birth was registered after 1 December 2003.
For children whose birth is registered before the 1 December 2003, the father does not automatically have parental responsibility. It is possible for a father to obtain parental responsibility either by agreement with the child’s mother or by Court Order. Please contact GWBHarthills should you have concerns that you don’t have parental responsibility and we can prepare a Parental Responsibility Agreement or otherwise advise you on how to obtain a Parental Responsibility Order through the Court.
Whenever the Court look at any question about the upbringing of a child, the child’s welfare is the paramount consideration of the Court. In deciding whether an Order should be made the Court applies something known as the welfare checklist. No one factor in the welfare checklist is over-riding. The checklist consists of the following factors:
a) The wishes and feelings of the child concerned (considered in light of the child’s age and understanding)
b) The child’s physical, emotional and educational needs.
c) The likely effect on the child of any change in his/her circumstances.
d) The child’s age, sex, background and any other characteristics which the Court considers relevant.
e) Any harm which the child has suffered or is at risk of suffering.
f) How capable are each of the child’s parents, and any other person in relation to whom the Court consider the question to be relevant, is of meeting the child’s needs.
The range of powers available to the Court under the Childrens Act
One of the most important principles of the Court is the “No Order Principle”. It is not necessary to have the Courts approval for private agreements reached between people regarding children. A Court will only make an Order if it is in the best interest of the child. The principle of this is to try and get parents to make their own decisions rather than relying on the Courts to make decisions which they should be making for their own children.
If you are experiencing difficulties in reaching agreements with your ex partner regarding your children contact GWBHarthills on 0114 2909500, 01709 377399 OR 01302 590800. We will advise you on the best course of action whether or not this is to attend mediation or attend collaborative law.
What happens at Court
If you have not been able to reach agreement about your children sometimes it is necessary for the Court to become involved. At any first hearing the Court will see if an agreement can be reached. If no agreement can be reached, the Court will direct how the case will proceed.
It is not necessary to detail each and every aspect of the case or prepare a statement in readiness for the Court hearing. In fact the Courts do not wish you to start mud-slinging or for each person to start criticising each other’s parenting.
It is usual for a CAFCASS Officer (the Children and Family Court Adviser Support Service) to prepare a short report on the case in readiness for the first Court hearing.
These reports detail whether or not there is any safeguarding issues any other risk factors. The CAFCASS Officer will often try and speak to both parties by telephone prior to the hearing and will recommend a way forward in the case.
It is usual for the parties to the case to have a discussion with the CAFCASS Officer for around 30 minutes or so. This can be a joint meeting where the CAFCASS Officer helps to identify issues that can be agreed and other issues which cannot be agreed.
The CAFCASS Officer will usually update the solicitors with the outcome of any discussions and the parties will then receive advice from their solicitors with the best way to proceed. Throughout the process the parties, CAFCASS Officers and solicitors will regularly discuss matters with each other, although you do not have to speak to the other side directly. It is not unusual for parties to only receive a short amount of the Judge’s time despite the fact that the first hearing can take all morning this is because at GWBHarthills we are determined to try and settle your case if possible.
If terms are agreed, the Court can simply approve and finalise this final Order and it may not be necessary for you to go to Court again. If issues remain in dispute the Court can direct that CAFCASS or Social Services prepare a detailed report. CAFCASS will look at what is in the best interest of the child and usually request an adjournment for 16 weeks or so to do a full investigation. These reports are increasingly rare unless there are safeguarding concerns regarding the children.
Sometimes the Court will simply record the issues in the case and once agreement has been reached and adjourned the case to see how any new arrangements that have been agreed work out.
It is rare for most cases to proceed to a fully contested hearing in which people have to give evidence as often proclaimed on television.
Should you have any queries whatsoever about childrens’ issues please contact GWBHarthills on 0114 2909500, 01709 377399 OR 01302 590800 for further advice.