The Law relating to Children

Many parents manage to agree arrangements for their children on separation and, in these circumstances, no formal order of the court is required. Under the Children Act 1989 the courts will not make any orders unless this will be better for the child than making no order at all.

Where there are disagreements about arrangements for children it is usually best to try to resolve these through negotiation or mediation, before starting court proceedings. However, where negotiation or mediation has not succeeded, or where there are very urgent questions to be decided, a court application can be made.

The court has a wide range of powers, including the power to make orders governing where children shall live (Residence Orders or Shared Residence Orders), orders governing the time children should spend with other people (Contact Orders) and orders determining specific issues (such as whether children should live abroad, where they should go to school and whether they should have medical treatment) or prohibiting certain steps (such as the removal of a child from one area to another).

In reaching decisions about the upbringing of children, the child’s welfare is the paramount consideration. The court must also consider:

  1. the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
  2. his or her physical, emotional and educational needs;
  3. the likely affect of any change in circumstances;
  4. the child’s age, sex, background and any other relevant characteristics;
  5. any harm which the child has suffered or is at risk of suffering; and
  6. how capable each of his/her parents or other relevant people are of meeting the child’s needs.

Parental responsibility is the legal term for all the rights and responsibilities that a parent has in relation to a child. A child’s mother automatically acquires parental responsibility for a child. A married father is also automatically granted parental responsibility. Where the child’s father and mother are not married then the father will gain parental responsibility if he is registered as the child’s father on the birth certificate (for children born from December 2003 onwards). Other unmarried fathers can acquire parental responsibility either through agreement or following a court order.

It is possible for financial orders to be made in favour of children, whether or not their parents are or have been married. The courts have a wide range of powers to order lump sums and maintenance, although the Child Support Agency will deal with the majority of cases where child maintenance is at issue for children under 16 (or under 18 and still in education).

People who are not the child’s natural parents (for example grandparents) can apply for orders relating to the children (for example Contact or Residence Orders), but the court will often have to give leave for such applications to be made.

You should not take a child out of the country unless you have the consent of everyone with parental responsibility, or the court’s permission, or unless there is a Residence Order in your favour and the holiday is for 28 days or fewer.

At Franklins we have extensive experience in advising on issues relating to children. We can assist you with negotiations and help with the mediation process. If court proceedings are necessary then we can advise you on your options and the procedures and represent you throughout these. We can also assist with financial questions relating to children and adoption. We can advise on issues concerning the paternity of children, where this is disputed.

We do not represent families in care proceedings, but we can refer you to specialist local solicitors where appropriate.

If you would like to discuss any issues concerning children then we recommend an initial fixed fee appointment.

The above information is intended to provide a general guide only. Advice as to your specific circumstances should always be taken.