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The family law team at Wheelers is committed to providing legal advice in relation to children in accordance with the Code of Practice of Resolution (formerly the Solicitors’ Family Law Association). We provide child-focussed advice placing the best interests of the child at its centre along with the preservation, wherever possible, of the child’s relationship with both parents.
It is important to understand that the separation of parents following the breakdown of their relationship can have a dramatic effect on the stability and security of their children. It is vital that issues in respect of the children are dealt with as amicably and swiftly as possible with proper consideration being given to ensuring that the children understand the continued commitment of both parents and the wider extended families to their welfare and happiness. It is enshrined in law that a child’s welfare shall be the court’s paramount consideration. This means in practice that parents and professionals involved with issues regarding children in these circumstances should work towards any agreement understanding that the child’s welfare is the overriding feature and one which supersedes all other considerations.
The factors which any court has to consider, where there is any difference of opinion between parents about arrangements for their children, are set out in Section 1(3) of the Children Act 1989 and are as follows:
- The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
- Their physical, emotional and educational needs;
- The likely effects on the child of any change in their circumstances;
- The age, sex, background and any characteristics of the child which the court considered relevant;
- Any harm which 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;
- The range of powers available to the court under the Children Act 1989 in the proceedings in question.
Child Arrangement Orders
The majority of disputes arise in relation to how much time the child or children will spend in each parent's home. These used to be known as either “custody” and “access” disputes or “residence” and “contact” disputes The court has power to make Child Arrangements Orders determining these issues pursuant to Section 8 of the Children Act 1989. Sometimes it will decide that neither parent is predominantly the primary carer. This used to be known as either "shared residence” or “shared care”. The vast majority of separating parents manage to reach agreement regarding their children without the intervention of professionals or the court. If they cannot reach agreement on their own, an alternative is to try and do this through mediation.
The court process
Some parents are unable to reach an agreement either on their own or through mediation. For these there is recourse to either the County Court or the Family Proceedings Court (a branch of the Magistrates Court) to resolve those difficulties. If parents, or extended family, have cause to bring an application to the court, then upon filing an application at court, there is a referral by the court service to Cafcass. This service performs the safeguarding role on behalf of the Judge and the acronym “Cafcass” stands for Children and Family Court Advisory and Support Service. The central functions of Cafcass are:
- to safeguard and promote the welfare of children;
- give advice to any court about any application made to it in such proceedings;
- to provide provision for children to be represented in such proceedings and
- to provide information, advice and other support for children and their families.
In the most serious of cases Cafcass also provide the Guardian ad Litem service. The Guardian ad Litem actually represents children in court proceedings.
In the vast majority of cases brought to court regarding children in disputes between parents and extended family, all professionals involved including the judiciary, Cafcass, solicitors and barristers have a duty to protect children and will be focussed on facilitating and encouraging families to reach amicable agreements, which are in the best interests of children.
The current court fee for issuing an application pursuant to Section 8 of the Children At 1989 is £215. We offer fixed fees for a number of hearings depending on your individual circumstances and case.
Prohibited Steps and Specific issue orders
The court also has the power to make prohibited steps and specific issue orders. A “prohibited steps order” means an order that no step which could be taken by a parent in meeting his parental responsibility 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. A “specific issue order” means an order giving directions for the purpose of determining a specific question (for example medical issues or educational issues) which has arisen or which may arise in connection with any aspect of parental responsibility for a child.
Parental responsibility is defined under Section 3 Children act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”, if parents are married to each other at the time of the child’s birth.
Where a child’s mother and father are not married to each other at the time of the birth, then the mother shall have parental responsibility and the father will have parental responsibility if he is named on the birth certificate, if the date of registration of the birth is after 1 December 2003. Parental responsibility in other cases can be granted to an unmarried father by a court order pursuant to Section 4 of the Children Act 1989 or under a Parental Responsibility Agreement. There are other situations where someone can acquire parental responsibility e.g. a step-parent or another person in whose name a residence order is made.
The areas where issues of parental responsibility may become important are those involving schooling, education and travel abroad.
For advice on all these issues please contact Deborah Prance (Solicitor and Resolution trained Mediator), Andrew Kingston (Solicitor and Resolution Accredited Specialist), Tatjana Williamson (Solicitor and Resolution Member) or Amanda Dodge (Chartered Legal Executive and Resolution Member) on 01252 316316 for further information, or to arrange a meeting.