Children

Most aspects relating to children upon divorce or breakdown of a relationship and also care proceedings are governed by the Children Act 1989 as amended and supplemented by other statutes.

Under the Children Act 1989 the interests of the child are paramount and there is a welfare checklist set out for the Court to consider in exercising its powers. The Court will not make any order unless it is positively in the child’s interests to do so.

Parental Responsibility

These are the rights and obligations a parent has for a child. They are not extensively set out in the legislation but are taken to include the obligation to make sure the child is properly accommodated and cared for as well as the right to make important decisions such as the religion the child is brought up in, schools attended, consent to medical treatment, with whom they come into contact etc. As a matter of good practice such decisions should always be taken in consultation with the other parent – and the child if old enough - whether parental responsibility is shared or not.

The child’s mother acquires parental responsibility upon birth of the child but the father acquires it only if:

• He is married to the mother at the time of birth or subsequently marries her.
• He is recorded on the child’s birth certificate as the father.
• He is granted it by a Court.
• He enters into a Parental Responsibility Agreement with the mother.

For children born before 1st December 2003 even if the father’s name appears on the birth certificate he has not acquired Parental Responsibility. It is possible to re-register a child’s birth to show the father’s details so that parental responsibility can be acquired this way.

This can be a complex area and advice should be taken. For example, the Parental Responsibility Agreement has to be in a particular form with various formalities to be followed, Parental Responsibility can also be delegated, for example, where a parent is going into hospital and the child is being looked after by grandparents.

Residence

This is the term used to describe with whom the child lives. This can be joint or shared, an increasingly common situation where both a child stays with both parents.

Contact

Is the time the child spends with the parent with whom he or she is not living or with others – usually extended family members. Contact can be:

• Indirect – telephone calls, letters, postcards e-mails etc.
• Direct – time spent with the other parent or others.
• Staying – involves staying overnight with the other parent or family members.

Principles

It is important that whatever the relationship between separating parents the children should be shielded from any hostility or animosity and should not be involved in adult matters. However, it is also important their voices are heard by the adults.

The Department for Children Schools and Families has put together what is actually a very good booklet that sets out more information on these topics and also about how to involve children and create Parenting Plans.- Putting Your Children First. A copy can be accessed by clicking HERE.

Resolution has also put together a very good page for advice that can be accessed by clicking here.

Public Law – Care – Proceedings

These are where the Local Authority has concerns for the welfare of children and takes action to share Parental Responsibility with the parent(s). These can lead to children being removed from their home and placed for adoption although current approaches are to try and keep the child within their family. Increasingly, members of a child’s extended family such as grandparents, aunts or uncles will become involved and be considered as potential carers. Unhappily legal aid which is automatically granted to the parents without means testing in such proceedings is not available to the wider family and involvement in such proceedings can be costly. We have experience of involvement in such proceedings in acting for parents and carers and can put together a package of representation designed to keep costs to a, minimum, for example, just to prepare statements or key hearings. Sometimes the Local Authority can be persuaded to contribute to the costs.

If you are concerned about a child in such a situation please get in touch to discuss how we may be able to help.

In All Cases

It is important to know what your rights are to start with so please give a call to arrange a free discussion of how we may be able to help.