At Adams Solicitors, we fully understand the importance of ensuring that the best interests of your children are prioritised at all times. Indeed, this is the approach that the Court will adopt when dealing with applications relating to your children – the best interests of the children are paramount.
Unfortunately however, you may believe that the best interests of your children are not being currently being met by the present arrangement or situation for a variety of different reasons. It might be because you are not able to have regular contact with the children. It may be because they are at risk from one of their parents and they need to be protected. It may even be because there is a disagreement about where the children should live or go to school.
It is important to seek advice so that we can tell you what can be done to ensure that the best interests of your children will be met. There are a number of issues which arise frequently and we explain these in more detail below.
What is Parental Responsibility?
Parental responsibility is defined at s.3(1) 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".
Essentially, it means making the day-to-day decisions regarding your child’s wellbeing whilst they are in your care and also involves the right to be consulted in relation to important decisions regarding their upbringing. It includes (but is not limited to) decisions regarding;
Who has Parental Responsibility?
- your child’s education
- your child’s religion
- your child’s medical treatment
- where your child should live
The mother of the child will automatically have parental responsibility from birth. If you are the father of the child you may have parental responsibility, but it is not automatic. It is dependent upon the following factors;
- whether you were married to the mother
- the date on which the child was born and registered
- whether you are registered as father on the birth certificate
We can advise you in detail about whether you have parental responsibility and/or how to acquire it when we have this information from you.
How can I acquire Parental Responsibility?
If you do not already have parental responsibility, we can advise you about the different ways that you can acquire it. This may include one of the following;
- re-registering the child’s birth – both parties must agree to do this
- entering into a Parental Responsibility agreement with the mother
- making an application to the Court for a parental responsibility order
It is also possible for step parents to acquire parental responsibility in some cases. Please contact our family law specialist to discuss the various options available to you.
Child Arrangements Order
The child arrangements order replaces what was formerly known as residence and contact orders. Both of those applications are now dealt with under the umbrella of the child arrangements order.
It is possible to apply for a child arrangements order to determine a number of different issues including;
- where the children should live
- with whom the children should spend time, how often and when
In most cases, the parents will agree about where their child should live and with whom. However, this is not always the case and there are sometimes good reasons why the child should move between parents.
If all of the people with parental responsibility agree about where the child should live, there is no need to do anything unless you wish to have the agreement recorded in the form of a court order. If so, we can usually prepare this for you and the draft order can be lodged with the court for approval with both parties’ consent. If there is a dispute however, further action may be required.
If the child arrangements order specifies with which parent the children are to live, that person will automatically acquire parental responsibility if they do not already have it.
A child arrangements order can also specify where and for how long the applicant will have contact with his/her child. In many cases, the parents will agree about how much time the non-resident parent is to spend with the children and if this is working well, there may be no need to do anything (unless you wish to have this recorded in the form of an order in which case we can usually prepare and submit a draft order to the court for approval by consent).
However if there is a dispute or the arrangements start to break down, further action may be required.
Initially, we will try to help you to come to an amicable solution with the other party as we always believe that it is better for you to come to your own decisions about your children wherever suitable and possible. We have very good links to mediation services in many areas and we can therefore make referrals for you very quickly – please see our mediation page here for more information (link to mediation page)
In the event that we are not able to resolve the disagreement in correspondence or mediation is unsuccessful or unsuitable, we can advise you about making an application to the court.
What does the court take into account and how does the court make a decision?
In the event that mediation is unsuccessful and you are not able to come to an agreement, you may wish to make an application to the court for a child arrangements order.
When considering making any application for a s.8 Order (this includes an application for a child arrangements order) the court will take into account the following factors as set out in the Children Act 1989;
the ascertainable wishes and feelings 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 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 are at risk of suffering;
- how capable each of his/her parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his/her needs;
- the range of powers available to the court under this Act in the proceedings in question.
However, the overriding principle which the court will adopt is that the welfare of the child is paramount. This is known as the “paramouncy principle”.
When determining any application, the court must also give account to the “no order” principle such that the court will not make an order unless it considers that doing so would be better for the child than making no order at all.
If it is not possible for the parties to reach an agreement in relation to the issue, the court may request that a s.7 report be prepared (amongst other things). This will either be prepared by CAFCASS (Children and Family Court Advisory and Support Service) or Social Services if they are involved with the family.
If a report is directed, an officer from CAFCASS or a social worker will be appointed. They will generally meet with both parents and the child (dependent upon his/her age and understanding). They may also wish to observe contact as part of their investigations. At the end of the report, the reporting officer or social worker will make conclusions and recommendations. Those recommendations will have significant weight in the proceedings and the Judge must give reasons if he/she departs from them.
What happens if a child arrangements order is breached?
All new child arrangements orders now have a warning notice attached to them. Breach of the order is contempt of court and the warning notice makes it clear to the parent that must make the children available for contact that breach is a serious issue and that there are sanctions for doing so. If the order is breached, you may apply to the court for an enforcement order. If the other party is found to have breached the order without reasonable excuse, the court may apply sanctions including a fine, compensation for loss or community service. However, in the majority of cases the court’s priority is to ensure that contact resumes (unless there is good reason to suspend it).
Other types of Section 8 application
Prohibited Steps Order
This is an order preventing another person from doing something in relation to a child.
These orders are most usually applied for when there is a concern that someone is about the remove the child from the care and control of their main carer or from the jurisdiction (i.e. take the child out of the country).
If you suspect that the other parent or any other person is about to remove the children from your care or from the country, you need to contact us as soon as possible because we need to act very quickly.
Specific Issue Order
This is an application to ask the court to determine a specific issue in relation to the child.
The most common applications are to change a child’s surname, to remove the child from the jurisdiction permanently (i.e. to relocate abroad) or to determine where the child should go to school if the people with parental responsibility do not agree. However, there are a number of other situations in which it may be necessary to apply for this order – please do not hesitate to contact us to discuss your matter so that we can advise you properly.
Both prohibited steps and specific issue orders are made pursuant to s.8 Children Act 1989. As a result, all of the factors listed in the section “What does the Court take into account and how does the Court make a decision?
” listed above also apply to these Orders.
A special guardianship order is similar to a child arrangements order which specifies with which parent the children are to live since it also names the person or people with whom the children are to live.
The special guardians will be named in the order. It is intended to afford greater certainty for the children by helping to provide a secure and long term home for them during their minority.
When a person becomes a special guardian, they acquire parental responsibility for the child (if they do not already have it). However, unlike a child arrangements order, a parent cannot apply for a special guardianship order. It is anticipated that other people who intend to care for the child in the long term may choose to apply for this order.
For instance, you may be a relative and you may want to care for the child for the long term because his/her parents are not able to do so. Alternatively, you may be a foster carer wishing to provide long term care for the child or children living with you.
Child Arrangements Order or Special guardianship order?
As mentioned above, the two orders are similar in that they can specify the person (or people) with whom the children are to live and they afford parental responsibility to that person (or people).
However, since special guardianship is intended to provide greater security and long term stability for the child, a person with a special guardianship order will be able to exercise their parental responsibility for the child to the exclusion of the other persons with parental responsibility (save for certain exceptions). As a result, it is not usually necessary to consult the other people with parental responsibility (usually the parents of the child) when making decisions about the child’s upbringing.
Furthermore, a special guardianship order affords parental responsibility for the child until he/she reaches 18 years of age whereas a child arrangements order only affords parental responsibility until the child reaches 16 years of age (save for exceptional circumstances).
The process for making an application for a special guardianship order
Before making an application for a special guardianship order, you are required to give notice in writing to your Local Authority. This must be given three months before you apply for the order.
After giving notice to the Local Authority of your intention to apply, they will then prepare a report for the court setting out all the necessary information to make a decision. The report will include the wishes and feelings of the child, information about the child’s birth family, information about contact arrangements and information about the proposed special guardians. Ultimately the report will conclude with a recommendation to the court setting out whether the special guardianship order should be made.
When considering whether to grant the Order, the Court will take into account the factors set out at s.1 Children Act 1989, namely those described in the section “what does the Court take into account and how does the court make a decision?
You may also be entitled to financial support from the Local Authority if the special guardianship order is to be granted and we can help to ensure that this is explored and that the package is suitable.
We are able to offer very competitive, cost effective and flexible packages to suit your individual needs dependent upon how much or how little you would like us to do for you.