Children General Questions & Answers

It is always preferable for parents to reach an amicable agreement concerning their children, either through negotiations, mediation or through solicitors.

If an agreement cannot be reached and negotiations and mediation are unsuccessful then either parent can apply to the court for a Residence Order or a Contact Order. If such an application is made then the child's welfare is the court's paramount concern.

However, please note that if there is no dispute between parents then the court will not intervene.

If matters cannot be agreed amicably then an application to the court may be required. This should only be considered as a last resort.

In order to determine what is in a child's best interests, the court will look at the following checklist when making its decision:

• The ascertainable wishes and feelings of the child (in light of their age and understanding)
• The physical, emotional, and educational needs of the child
• The likely effect of any change of circumstances
• The child's age, sex, background, and any other characteristics the court considers are relevant
• Any harm the child has suffered or is at risk of suffering
• How capable each of the child's parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child's needs

Generally the two most common applications before the court are regarding Residence (which used to be referred to as "custody") and Contact (which used to be referred to as "access"). Details of these orders are set out below:

A Residence Order clarifies with whom a child lives.

An Order can be made in favour of more than one person but it does not affect either parent's Parental Responsibility, although as the person to whom a Residence Order is granted automatically obtains Parental Responsibility for the child, a Residence Order can result in an unmarried father who did not already have Parental Responsibility obtaining Parental Responsibility.

A Residence Order can be made in favour of one parent or if it is suitable then a Shared Residence Order can be made in favour of both parents.

When considering the issue of Residence consideration must also be given to the following:

• The child's wishes and feelings, as well as their emotional, physical and educational needs
• The accommodation available for the child
• If you are a working parent, the childcare arrangements during working hours / school holidays etc
• If a change of Residence does take place, you need to consider the effect this may have upon the child, and if applicable, what effect separation from their siblings may have

A Contact Order sets out when the resident parent (who the child lives with) should make the child available for contact with the non-resident parent (or sometimes a grandparent or other relative) and if required the frequency and duration of the contact.

In order for the court to reach any decision concerning a child then it may be necessary for a CAFCASS Officer to be instructed. Their role is to prepare a report and make recommendations to the court regarding the children and what is in their best interests.

If you have real concerns that your partner may:

• Remove your child from your care and control without your consent
• Fail to return your child after contact
• Remove your child from school / nursery / a third party's care without your consent

You are able to apply to the court for a Prohibited Steps Order.

A Prohibited Steps Order limits when certain parental rights and duties can be exercised, for example it can prohibit a person from removing a child from your care and control without your consent.

Should you have any concerns about the children being removed from school / nursery please ensure that you speak to the head teacher immediately.

Should any of the above be of real concern to you then you must contact us immediately.

If you have real concerns that your partner may remove your child from this country or move away from the area without your consent then you are able to apply to the court for a Prohibited Steps Order.

A Prohibited Steps Order limits when certain parental rights and duties can be exercised, for example it can prohibit a person from removing a children from this country without your consent and until the matter has been dealt with by the court.

Should any of the above be of real concern to you then you must contact us immediately.

If matters cannot be agreed amicably between parents and negotiations and mediation have failed then an application to the court may be required. This should only be considered as a last resort.

When parents are unable to agree on specific matters concerning their child then it may be necessary to apply to the court for a Specific Issue Order.

This is an Order which deals with “specific” matters regarding a child for example (and these are not exhaustive) – a change of surname, choice of school, whether a child can be taken abroad, a child's religion etc.

If no agreement can be reached then the matter may be referred to a CAFCASS Officer to make a recommendation to the court.

Mediation is the process in which an impartial third person assists those involved in a family breakdown to communicate better in an attempt to reach an agreement concerning their separation, in particular matters such as divorce, children, finance and property. The focus of mediation is to look forward to the future and to focus on the important issues.

Mediation could help you because it may alleviate the need for court proceedings. If an agreement can be reached through mediation and by agreement, then such agreements usually last and may lead to a better relationship between separating couples, which will of course be of benefit to the children.

If mediation is suitable for you then it can prove to be very important in matters concerning children. If, however, there has been an issue of domestic violence within a relationship then mediation would be considered to be inappropriate.

Should you consider mediation would be helpful then please contact us.

Unless the application before the court is an emergency the following is the usual procedure followed by the county court:

• Your application will be prepared, approved and filed with the court.
• At the first hearing a mediator and a CAFCASS Officer will usually be in attendance at court to offer advice and assistance, and to establish whether it is possible for the parents to negotiate matters regarding the children.
• If matters can be agreed then if appropriate an order in the agreed terms will be made
• If matters cannot be agreed then it may be necessary for the court to instruct a CAFCASS officer to investigate the matter and make a recommendation to the court.
• Once the CAFCASS has prepared their report and made their recommendations it is usual for the matter will return back to court for a short hearing to establish if matters can be agreed based upon the recommendations
• If matters still cannot be agreed then the matter may be listed for a final hearing

Please note that each court may vary their procedure regarding matters concerning children. Further each matter is dealt with on a case by case basis and therefore an alternative procedure may be considered to be appropriate.

CAFCASS is an organisation independent from the court, social services, education and health authorities and stands for Children and Family Court Advisory Support Service.

Within court proceedings when parents are unable to agree on matters regarding their children then it may be necessary for the court to instruct a CAFCASS Officer to prepare a report upon the issue(s) which cannot be resolved and make a recommendation to the court.

The role of CAFCASS is to:

• Safeguard and promote the welfare of the children
• Give advice to the family courts
• Make provision for children to be represented
• Provide information, advice and support to children and their families

For further information regarding CAFCASS and their role within court proceedings then we would suggest you look at their website www.cafcass.gov.uk

Parental Responsibility is defined as “all rights, duties, powers and responsibility and authority which by law a parent of a child has in relation to the child and property”.

Mothers and married fathers automatically acquire Parental Responsibility.

If you are an unmarried father and your child was born before 1 December 2003 even if you are named on your child's birth certificate you will not have Parental Responsibility for them (unless you have obtained it by one of the methods below).

A father who does not have Parental Responsibility is able to obtain Parental Responsibility by one of the following:

1. A Parental Responsibility Agreement is drawn up and the child's mother provides her consent
2. The Father applies to the court for a Parental Responsibility Order
3. The Father obtains a Residence Order
4. The Father marries the Mother

If you do not have Parental Responsibility then we would suggest that you contact us so we can provide you with further advice and assistance.

Please see the section headed Parental Responsibility for details.

Should you have any further questions then please contact us.

Children are affected by their parent's separation in many different ways. If a child is very clear in their views then you cannot force them to have contact against their wishes. However, if appropriate, you will need to take steps to encourage them to have contact.

If there is a Contact Order in place then you may need to refer the matter back to court if you are failing to follow the terms of the order. If you fail to do so then your ex-partner may refer the matter back to court in any event.

If an application to court is made by either parent then it may be necessary for a CAFCASS Officer to be instructed to establish the reason why the children are saying this and, if appropriate, to offer help and assistance and thereafter make a recommendation to the court.

If you are in this situation then we would recommend that you contact us as soon as possible.

If matters regarding contact cannot be agreed between parents then we recommend you make an appointment to see us as soon as possible.

It is usually considered to be in a child's interests to have a meaningful relationship with both their parents and therefore if contact arrangements cannot be agreed then an application to the court for a Contact Order may be necessary.

If an application to the court is made and contact arrangements still cannot be agreed then it may be necessary for the court to instruct a CAFCASS Officer to make a recommendation to the court about this issue. If a Contact Order is granted by the court this will set out the terms / frequency / duration of any contact arrangements.

Ultimately in situations like this it is always preferable for parents to agree these arrangements.

If parents cannot agree matters then it may be necessary for an application to the court to be made for a Specific Issue Order. If such an application were made then it may be appropriate for dates, flight details, accommodation details and contact details to be provided to the other parent.

Should this situation be relevant to you then we would suggest you contact us immediately.

A child has a right to have contact with their father or mother (non-resident parent) irrespective of whether maintenance is being paid.

However, if you are a father or mother of a child then you also have an obligation to maintain them and in turn you should pay the appropriate amount of maintenance to the resident parent.

Please see the Child Support Agency website www.csa.gov.uk to calculate the amount which should be paid / received.

We would always recommend that you obtain the other parent's consent before changing a child's name. This will ensure that no problems arise at a later stage.

If you are the only person with Parental Responsibility for the child then you may change a child's name without the father's consent. However, if the father finds out that the name has been changed and he did not provide his consent then he is able to apply to the court for the name to revert back to his name.

Should you wish to change your name or your child's name then we suggest that you contact us.

If maintenance cannot be agreed then it will become necessary for an application to the Child Support Agency (CSA) to be made.

As an overview an absent parent will be required to pay the following from their net income:

1. 15% for one child
2. 20% for two children
3. 25% for three or more children

There are a number of factors which may impact these figures, for example step-children and the number of nights the child stays with the non-resident parent.

A helpful website is www.csa.gov.uk where you can calculate the amount to be paid / received.

In situations such as this adoption is not appropriate, but obtaining Parental Responsibility may be appropriate.

On the basis that the child's biological father does not have Parental Responsibility then you can enter into a Parental Responsibility Agreement which will give a third party, such as a husband or wife, legal responsibility for that child. Even if the biological father does not have Parental Responsibility we would always recommend that you obtain his consent because otherwise he may make an application to the court prohibiting this.

If, however, the child's father does have Parental Responsibility then you will need to obtain his consent for a third party to obtain Parental Responsibility for that child. If his agreement is not forthcoming (or you have no knowledge of his whereabouts) then you are able to apply to the court for a Parental Responsibility Order.

A consideration which will need to be addressed is the biological father's involvement within the child's life. If the father is actively involved within the child's life and exercises his Parental Responsibility by being involved with their upbringing then it is likely to be considered inappropriate for a third party to obtain Parental Responsibility for the child, because two parents are already exercising their Parental Responsibility.

If a child is under the age of 16 years upon their parent's death the presumption would be that the child should then be placed in the care of their other parent.

If, however, you do not wish for this to happen then you should draft a Will and include a Guardianship Clause which specifies who you consider to be best able to meet the child's needs.

However, you should be aware that the other parent is able to contest this and bring the matter to court and ask that the court determine this issue.

It may be appropriate for an application for a Special Guardianship Order to be made.

A Special Guardianship Order will give a child's carer Parental Responsibility for a child. However, unlike Adoption it will not remove parental responsibility for the child's birth parents, although their ability to exercise parental responsibility will be limited.

A Special Guardian will have clear responsibility for all day-to-day decisions concerning the child and their upbringing, for example their schooling. Although the birth parent retains their parental responsibility for the child a Special Guardian will only have to consult them regarding decisions in exceptional circumstances.