Children in divorce proceedings

Parental Responsibility is defined in s 3(1) Children Act 1989 as being:

“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”.

Fundamentally it confers the right to make important decisions relating to your child, for example, in relation to their school choice, their religion, their name and in relation to their health care. In some circumstances, it is important to obtain the consent of everyone who has Parental Responsibility before taking a decision about a child.,(for example which school they should attend). If there is no agreement on an important issue and all other avenues of dispute resolution have failed (such as mediation), then it is possible to make an application to the family court for a ‘Specific Issue Order’ to ask the court to make the decision based on the evidence available and in the best interests of the child.

It is important to note that the term Parental Responsibility attempts to promote a parent’s duties towards their child, rather than a parent’s rights over their child.

A mother always has Parental Responsibility for a child (which can rarely be lost).

The child’s father has Parental Responsibility for a child if he was married to the child’s mother at the time of the child’s birth. An unmarried father will have Parental Responsibility automatically if he registered the birth with the mother on or after 1 December 2003.

An unmarried father may take steps to acquire parental responsibility, by:

• marrying the child’s mother;
• applying to the court for a Parental Responsibility order;
• making a Parental Responsibility agreement with the child’s mother; or
• being appointed guardian.

A step-parent may acquire Parental Responsibility for a child if he or she is married to, or the civil partner of, a person with Parental Responsibility for the child, either by agreement with the parent (and with any other person with Parental Responsibility), by court order, or through adoption.

A special guardian has Parental Responsibility for the child.

A person named in a Child Arrangements Order as a person with whom a child lives has Parental Responsibility.

A parenting plan is a voluntary, written agreement between parents (and can include grandparents and other family members) setting out how they plan to parent their children. It usually covers where the child will live, the arrangements for spending time with the other parent, school arrangements, issues around their health and how parents will reach decisions.

It is encouraged for separated parents to draw up a plan because it ensures consistency for the child and limits conflict. A parenting plan can be drawn up between parents themselves, however when there are disagreements and if the issues are complex, solicitors can assist to negotiate the issues left outstanding.

Please note a parenting plan is not automatically legally binding. However, there is the option of formalising the agreement through a Consent Order which is approved by the court.

It is important to understand the legal position when it comes to your child travelling abroad. If two or more people share parental responsibility for the child and there are no court orders in place, then the consent of everyone with parental responsibility is needed before your child can travel abroad.

If you do take or send your child abroad without consent, you could be committing a criminal offence which can have serious repercussions. If you are unsure, it is important to check with a family solicitor who can advise you on where you stand and whether you need to seek permission.

If the other party refuses permission, you can ask the family court to make an order, but you should try to resolve this through mediation or solicitor negotiation first.

If you believe the child’s other parent may be planning to take a child abroad without your consent, you should seek immediate advice from a family solicitor and potentially you may need to apply to the court for a ‘Prohibited Steps Order’ forbidding the removal of the child.

If one parent has a Child Arrangements Order stating that the child lives with them, then they can take the child abroad for a month without the written consent of the other parent but need to be careful not to breach any order which may be in place providing for the child to spend time with the other parent.

It is very important that you obtain written consent from all individuals who have parental responsibility, e.g., the other parent, before attempting to relocate abroad with your children. If you do not, then you may be committing the criminal offence of child abduction.

If you are unable to obtain consent from the other parent, then you will need the court’s permission to relocate.

The court will consider all the factors in the Welfare Checklist (Section 1(3) of the Children Act 1989) in order to assess  whether the move would be in the best interests of the child, as well as the reasons for the move, the proposals for contact with the other parent, the effect on the child and parent wishing to relocate if the application is refused and the effect on the child and the parent remaining at home if the application is allowed.  This is a complex application and specialised legal advice should be sought at an early stage.

It may be possible to mediate over this issue with a view to finding some acceptable arrangement.

Other members of the family aside from the child’s legal parents and others who hold parental responsibility for the child do not have an automatic right to see the child. However, they can apply to the family court to spend time with the child but would usually first need to ask for the court’s permission. Should the court be satisfied that contact would be in the child’s best interests then this is likely to be directed by the court.

Going to court can be a stressful and expensive experience. It is a ‘last resort’ if all other dispute resolution avenues (such as mediation and solicitor negotiations) have been explored and have failed.

If no agreement can be reached outside court, you can apply for a Child Arrangements Order. This is a court order specifying who the child will live with and the time the child will spend with each parent. The amount of such time will depend on the facts of each case and may well need to be reviewed after a period of time or if there are any changes in the circumstances. The court will always make an order on the basis of the child’s best interests considering all the factors in the Welfare Checklist (as per Section 1 (3) Children Act 1989).

If a court order is made and then breached by the parent, it may be necessary for further applications to be made to enforce the court order.

The best arrangement is usually the one you make yourselves as a family taking the wishes and feelings of older children into account. There is no need for a court order setting this out if the arrangements are agreed.

Unfortunately, in some cases this is not possible even with the help of mediators or solicitors. If the only option is an application to the court, the court’s paramount consideration is what is in “the best interests of the child” (the paramountcy principle). It is presumed, unless the contrary is shown, that the involvement of both parents in the child’s life will further their welfare. The court must have in mind a “Welfare Checklist” (section 1(3) Children Act 1989) and must have regard to:

• The ascertainable wishes and feeling of the child concerned (considered in the light of his/her age and understanding);
• His/her physical, emotional and educational needs;
• The likely effect on him/her of any change in his/her circumstances;
• His/her age, sex, background and any characteristics of his/hers which the court considers relevant
• Any harm which he/she has suffered or is at risk of suffering;
• How capable each of his/her parents, and another person in relation to him/her the court considers the question to be relevant, is of meeting his/her needs; and
• The range of powers available to the court under the Children Act 1989 in the proceedings in question.

Under Section 8 of the Children Act 1989, a court can make the following orders in respect of children:

• Child Arrangements Order: sets out with whom a child is to live, spend time or otherwise have contact.
• Prohibited Steps Order: prohibits a named person from taking certain decisions or action without permission of the court, e.g., preventing you from taking your child abroad without permission.
• Specific Issue Order: settles disputes over certain issues which arise in connection with the exercise of parental responsibility, e.g., an order directing which school a child is to attend.

In addition, the court has the power to make a variety of other orders relating to children, including:

• Parental Responsibility Order
• Enforcement of a Child Arrangements Order
• Special Guardianship Order
• Adoption Order
• Wardship and Orders under the Inherent Jurisdiction
• Location and Collection Orders
• Passport orders
• Disclosure of a Child’s whereabouts
• Search for and delivery of a Child
• Declaration of Parentage

Shared Care is most commonly used to describe a type of Child Arrangements Order which provides for a child to live with one parent at times set out in the order and to live with the other parent at all other times. It is not necessary for the division of time to be broadly equal; the term ‘shared care’ can still serve a useful purpose. It can remind parents that they are of equal importance to their child and can also be important for a child’s sense of identity. It is not appropriate in every case. A combination of ‘lives with’ and ‘spends time with’ orders may work better.