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Private Children Act Proceedings

 

 
 

 

 

When considering what action to take in respect of a relationship breakdown, consideration must be given to the effect of those actions on any children involved.

 

Children are often described as Solicitors’ invisible clients in divorce proceedings, as consideration must be given to the effect of the parent’s actions on the child involved. In certain circumstances it may be appropriate and helpful for the parties to be referred to mediation in relation to decisions about children and if appropriate we are more than happy to recommend an appropriate agency to be consulted.

 

Parental Responsibility

The Children’s Act 1987 defines parental responsibility as “all the rights, duties, powers, responsibility which by law a parent of a child has in relation to the child and his property”.

 

In reality, this gives parents the responsibility of taking all important decisions in a child’s life, for example education, medical care and religion. The duties involved in parental responsibility will change from time to time with different needs and circumstances and vary with the age and maturity of the child concerned.

 

Who has parental responsibility?

Married parents have joint responsibility. If parents are not married only the mother has parental responsibility, however an unmarried father can acquire parental responsibility in one of the following ways:

 

  1. By entering into Parental Responsibility Agreement with the mother.
  2. By applying to the Court for a Parental Responsibility Order.
  3. By being appointed a Guardian either by mother or the Court, although in these case he will assume parental responsibility only on a mother’s death.
  4. By obtaining a Residence Order from the Court.
  5. By marrying the mother.
  6. By appearing on a child’s Birth Certificate as being the father (kindly note this only applies to children who were born after December 2002).

 

Various other people may also acquire parental responsibility toward a child. A Local Authority will acquire Parental Responsibility if a Care order is made in relation to the child or anyone who is granted a Residence Order in relation to a child, or even the Court if the child is made a Ward of Court.

 

How can you lose Parental Responsibility?

There is no limit to the number of people who can have Parental Responsibility at any one time and no one will lose Parental Responsibility just because another person acquires it. If on divorce a Residence Order is made in favour of a grandparent this will mean that the child’s mother, father and grandparent will have parental responsibility. The parents lose the responsibility of having a child living with either of them because of the Residence Order but retain all other responsibilities. If a Care Order is made, the Local Authority acquires Parental Responsibility but the parents still, in theory, retain parental responsibility.

 

The two situations in which a parent will lose parental responsibility are:

  1. The parent’s death.
  2. The child’s adoption.

 

An unmarried father who has acquired parental responsibility by a Parental Responsibility Order can lose it if the Court makes a further Order ending it.

 

Any one other than unmarried father who has acquired parental responsibility by being granted a Residence Order will lose it automatically when the Residence Order terminates.

 

Existing Parental Responsibility

Even though several people may have parental responsibility for a child, it is possible for each to act alone with no duty to consult anyone else, save for the right to unilaterally change the child’s surname. Subject to this, one parent can determine questions such as medical treatment, religion and education without consulting the other. The only way to challenge a decision is to make an application to the Court for a Specific Issues Order or a Prohibited Steps Order.

 

It is not possible to transfer or surrender parental responsibility. However, parents can delegate responsibility for a child on a temporary basis, for example to a school for a school trip or to a nanny or to a child minder. Temporary care does not acquire parental responsibility but may do what is reasonable in all the circumstances of the case for the purposes of safeguarding and promoting the child’s welfare. This could cover emergency medical treatment for the child if needed when the parent is absent, for example during a school trip or when the parent is at work during the day and a nanny is in charge.

 

Section 8 Order

The Children’s Act 1989 Section 8 enables four Orders to be made by the Court in relation to children.

  •   Residence Order
  •   Contact Order
  •   Prohibited Steps Order
  •   Specific Issues Order

 

Each of these Orders will determine a particular matter relating to the child’s upbringing. 

Residence Order

A Residence Order is an Order settling the arrangements to be made as to the person with whom the child is to live.

 

Following a divorce, parents will share parental responsibility and therefore the making of a Residence Order will only decide where the child lives.

 

Joint Residence Order

A Residence Order can be made in favour of two or more persons who do not all live together. The Order can specify the periods during which the child is to live in different households. This means that a Court could order that a child lives alternative weeks with each parent, or lives during term time with one parent and during holidays with the other, or spends a fixed period say, the summer holidays with one parent. A Residence Order is therefore a flexible power which can be adapted to the needs of a particular family. The Court will only make a split Residence Order if it feels it is in the welfare of the child to do so. The Court is given wide powers to attach directions, conditions, incidentals and supplementary positions to the Residence Order. These could for example direct where a child is to be educated or impose a ban on removing the child from the country or could direct the non-resident parent be informed if the child requires medical treatment in circumstances where the parent with whom the child is living has a religion objection to blood transfusions.

 

When a Residence Order has been made, two aspects of parental responsibility are automatically effective. 

Change of surname

  Where a Residence Order is in force, the Order will provide that no person can cause the child to be known by a new surname without either:

 

  (i) the written consent of every person who has parental responsibility, or

 

  (ii) the leave of the Court.

 

  If a divorced mother wants to change her child’s surname, perhaps following remarriage or reverting to her maiden surname herself, she will have to obtain the permission of her spouse and if this is not given she will have to apply to the Court. The Court will base any decision on the welfare principle. The Court is genuinely reluctant to authorise a change of surname unless it is in the interest of the child to do so. The factors to weigh up include embarrassment to the child and parent of having different surnames, the child’s wishes and to the extent to which the original surname is important to maintain links with the parent and other relations with whom the child does not live. 

Leaving the UK

  Where a Residence Order is in force, no person may remove the child from the UK without either.

 

  (i) the written consent of every person who has parental responsibility, or

 

  (ii) leave of the Court.

 

If a parent needs to apply to Court to seek permission to take a child abroad, the Court again will base its decision on the welfare principle. It will, therefore, seldom be difficult to persuade the Court that a holiday abroad is in the best interest of the child, unless for example it is a cover for an abduction. If emigration is intended, the Court is likely to grant consent provided the decision of the parent is reasonable. The Court will look carefully at the reasons for the emigration, as well as the effect that refusing consent will have on the parent.

 

Contact Order

  A Contact Order is an Order requiring the person with whom the child lives with, to allow the child to visit or stay with the person named in the Order.

 

  A Contact Order can authorise physical contact but can also cover contact by letter or by telephone. The amount of contact can either be specified in the Order to cover weekend visits or holidays, or the Order could be for reasonable contact, in which case the arrangements can be made by the parents. The latter is obviously preferable as parents can make and alter arrangements to suit circumstances. A Contact Order can also be made preventing contact with someone. An alternative way to achieve this is by a Prohibited Steps Order.

 

  A Contact Order can contain conditions and directions. These are often used to build up contact gradually between a young child and a parent who has not seen the child for a while, or to ensure supervised contact to protect the child. This could take place at a local child contact centre. These centres have been set up across the country to provide an opportunity and setting for contact to take place in circumstances where arranging contact might otherwise be difficult.

 

  The Court’s approach is that the child has a right to know both parents and therefore the starting point is that a child should have contact with the absent parent. However, the Court will consider all the circumstances and may decide that because of factors such as parent’s conduct, the emotional welfare and stability of the child or even the attitude and behaviour of a step-parent, it is in the best interest of that child not to be granted a Contact Order.

 

Prohibited steps Order

A Prohibited Steps Order is an Order that no step which could be taken by parent in meeting his or her parental responsibility is for a child and which is of a kind specified in the Order shall be taken by any person without the consent of the Court. This Order deals with any specific problem which has arisen. However, it cannot overlap with a Residence or Contact Order. A Court cannot make a Prohibited Steps Order, or a Specific Issues Order with a view to achieving a result that could be achieved by a Residence or a Contact Order. For example, the Court could not grant an Order prohibiting the child from living with anyone other than the Applicant, as this would in effect be a Residence Order. It can however be used to restrict anyone, not just the parent. For example, it could be used to prevent a grandparent with whom the child lived from removing the child from the jurisdiction.

 

If no Residence Order was in force, a Prohibited Steps order could be used to prohibit the removal of the child from the country or prevent a change of surname.

 

Specific issue Order

A Specific Issue Order is an Order giving directions for the purpose of determining a specific question which has arisen or which may arise in connection with any aspect of parental responsibility for a child.

 

It does not give a parent general power but makes a decision on one issue over which there is a disagreement which cannot be resolved. For example, it can be used to decide which school a child should attend, whether a child should have a particular operation or course of treatment or the religion that a child should adopt.

 

When deciding what order to make, the court MUST consider the Welfare Principle.

 

Welfare Principle

The Welfare principle will determine any contested proceedings under Section 8 of the Children’s Act.

 

The Court will pay particular attention when considering the welfare principle to seven factors:

 

1. The ascertainable wishes and views of the child concerned (considered in light of his age and understanding).

 

  This factor reflects the importance of allowing a child’s wishes to be given a place in deciding what is in his or her welfare. However, the child’s wishes do not necessarily take precedence and the Court may feel that a child’s wishes are not in their best interest.

 

  The Court will place great importance on the Welfare Report prepared by a CAFCASS Officer, which will consider the child’s wishes, as well as the maturity of the child and the extent to which the parent may have exerted influence over the child informing any views. In some cases a Judge may interview a child privately during the case to form his or her own opinion.

 

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

 

  This factor focuses on the child and will look at accommodation, medical needs, education, as well as how close the child is to brothers and sisters and others with whom he may lose touch if a particular Order is made.

 

  The Court will not equate welfare with material advantages and the fact that one parent can offer more is of little weight, particularly because the Court could compensate for this when making financial Orders.

 

  The Court will consider the circumstances very carefully before splitting brothers and sisters. This will mean that it is unusual to separate siblings especially when they are close in age although the larger the age gap, especially if linked with the fact that one child is at boarding school, could mean that children might be happier separated with generous contact during holidays.

 

3. Likely effect on the child of any child in circumstances.

 

  If the current arrangements for a child are working satisfactory, the Court would be very unlikely to change them. This is often referred to as maintaining “the status quo”.

 

  The Result of this is that the person with whom the child is living is at a considerable advantage.

 

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

 

  Age may be important as very young babies tend to live with their mothers, whereas a fifteen year old child can generally cope without either parent. The sex of the child can be taken into account; however it is a consideration and not a presumption. The background of a child will also be considered which can cover race, culture and religion. The needs of a mixed race child are particularly difficult when deciding where a child should live, as the Court will need to look at how the child has been brought up and the influences of each culture and make appropriate residence and contact arrangements.

 

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

 

This factor will cover any part of future harm to the child. Harm is a very broad terms and will cover both the physical and psychological injury.

 

The Court will also consider the harm caused to a child by not seeing both parents.

 

6. How capable each of the child’s parents and any other person in relation to whom the Court considers the question relevant is of meeting the child’s needs?

 

  This factor involved the Court looking at the parents to assess their ability to care for the child. The parent’s conduct will be relevant to the extent that it may affect their suitability as a parent. Any criminal record for violence of dishonesty will therefore be relevant.

 

  In disputes between natural parents and another, for example grandparents, the Courts tend to presume that unless there is positive evidence to the contrary, it is in the child’s best interest to live with their natural parents.

 

  Whether a parent works will influence the care of the child. A parent’s lifestyle and sexual orientation may be relevant.

 

  A parent who suffers from a mental or physical illness which could mean sudden or long term stays in hospital might also be less suitable as a fulltime carer. Religion too may have an influence on a Court’s decision, particularly if it may have an adverse effect on the child’s health or have a harmful influence on the child’s development. The deciding factor is the welfare of the child.

 

7. The no order presumption.

 

  Where a Court is considering whether or not to make an Order under the Children’s Act with respect to a child, it should not make an Order or any Orders unless it considers that doing so would be better for the child then not making any Order at all.

 

  This means that there is a policy that the Court will not interfere and make an Order unless it can be shown that there is a positive need and a benefit to a child in doing so.

 

By Preeya Rampersad

 

 

 
 

 

 

Contact our specialist solicitor at on 0208 300 6666 to a arrange an initial free consultation at one of our offices:

Children Lawyers in Sidcup | Children Lawyers in Dartford | Chrildren Lawyer in Erith


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