The Law relating to Children

The law relating to disputes between parents concerning their children is almost entirely contained within The Children Act 1989. The thread running throughout this Act is that when a Court is asked to decide a matter concerning children, the child’s welfare will be their paramount concern.
Before making a decision the court must have regard to the welfare checklist in Section 1(3) of the Act. Further regard will be given to the principles that delay must be avoided and that an Order will only be made when such is better for the child than if no order was made.
The Orders available in Section 8 of the Act are limited to contact, residence, specific issues and prohibited steps orders.

Embedded in the Act is the belief that children are generally best looked after by their parents, with both parents playing a full part in their upbringing. Parents are encouraged to make every effort to agree the arrangements for their children between themselves, using mediation when necessary, and only resorting to the Courts when everything else has failed.
Rather than considering the 'rights' of parents, the Act talks of 'parental responsibility' for a child.

Delay
A basic principle laid down in the Act (but unfortunately not always complied with because of limited resources) is that delay in determining a question concerning a child is likely to prejudice the welfare of the child and should be avoided. In an attempt to keep delay to a minimum the court will always draw up a timetable which has to be complied with and will give such directions as appropriate for the purpose of ensuring that the timetable is adhered to and delay avoided.

No Order
A further principle is the ‘no order’ principle. The court will not make an Order under the Act unless it considers that doing so would be better for the child than making no order at all. Therefore a court will not interfere with arrangements between parents unless making an order will improve things for the child.
There is no such thing as a consent order in Children Act proceedings. However where parents have been in dispute but managed to agree matters, the Court will usually find that the making of an Order will confirm the position and therefore be in the child’s best interest.

Contact / Residence Orders

Prohibited Steps/Specific Issues Orders

When parents cannot decide about a particular issue relating to their child’s upbringing, an application may be made for the Court to decide the issue and make a Specific Issue Order.
Examples of when an application may be necessary are where parents cannot agree on the school their child should go to, whether to change their surname, whether they might leave England and Wales to live in another country or decisions about religion, medical treatment and the like.

An application to the court for a prohibited steps order will be necessary when a parent or person with parental responsibility for a child requires an Order of the Court that a person refrains from taking certain actions concerning the child.
Prohibited steps orders will be sought for such matters as:-
To prevent a person bringing the child into contact with somebody who is likely to have a bad influence on the child.
To prevent a person from removing the child from the jurisdiction of the court.
To prevent a change of surname
Where there is a danger of children being removed from the Courts Jurisdiction, or it seems that a former partner could intend to take some action with the children which would not be in the child’s best interest, then the Court will make a Prohibited Steps Order.
We then need the relevant products:

Parental Responsibility

The concept of Parental Responsibility replaces the old idea of one or both parents having custody of a child. Parental Responsibility change the emphasis on rights over children to parent's responsibility for their children
It is defined in the Children Act as:
‘all the rights, duties, powers and responsibilities which a parent has for a child’.
Having Parental Responsibility therefore involves making decisions over providing a home, feeding and clothing, providing protection and security, ensuring that the child receives a satisfactory education, consenting to medical treatment and generally all the important things in a child’s life.
Mothers always have parental responsibility. Fathers have automatic parental responsibility if they are married to the mother at the time of the child's birth, but not otherwise.

An unmarried father may however acquire parental responsibility by:

•Being registered as the child's father at birth, so long as registration took place after 1 December 2003.
•Entering into a Parental Responsibility Agreement with the mother.
•Applying for and obtaining a Residence Order or a Parental Responsibility Order from the Court.
•Being appointed the Child Guardian or Special Guardian.
•Subsequently marrying the child's mother.

Where two or more persons have Parental Responsibility, each may (in most but not all cases) exercise their Parental Responsibility independently without the consent of any other person with Parental Responsibility. If agreement cannot be reached about an aspect of the child's upbringing, then the court can be asked to intervene and decide the matter and make a Specific Issues Order. Both parents (or permission from the Court) must agree before a child’s surname can be changed or the child removed from the UK.
You can find all what you need in our e-Book:
The Litigants in Persons Guide to Children Law

Permalink