09 Mar 2018 Posted in Children Family Law 

How can a children’s solicitor help separating parents reach agreement?

Lucy Terrell Posted by Lucy Terrell, Solicitor, Family Law

How can a children’s solicitor help separating parents reach agreement?

The breakdown of a relationship is never easy, but when children are involved, the situation can become strained. A specialist children’s solicitor can help parents resolve their differences when it comes to child care and help to reach an agreement that puts the children’s needs first.

From parental responsibility to child arrangement orders, the terms and legal jargon used can be confusing. Here we explain in clear terms how a children’s solicitor can help.

What is a Child Arrangements Order?

This was formerly known as a ‘Contact Order’ or ‘Residence Order’. It is an Order which regulates arrangements relating to whom a child or children should spend time with, live with or have other types of contact with. It is a legally binding Order.

If this Order is in force, no-one can allow the child to be known by a new surname or remove him/her from the UK for over one month, without the written consent of every person who has parental responsibility for the child.

The Court usually takes the view that it is the child’s right to spend time with both their parents. It is not an automatic right of the parents to decide whether or not contact should take place and on what basis.

How do I apply for a Child Arrangements Order?

If you cannot agree matters with your ex-partner, there is a legal process to follow. The first step for most people is to attend a family Mediation Information and Assessment Meeting (MIAM).  There are exceptions to this, for example if domestic abuse has taken place.

If mediation does not help resolve the issues involved, an application on a Form C100 and a C1A (if there are issues of risk of harm to the child) can be issued into the nearest Court to where the child lives. There is a Court fee of £215 for filing these forms.

What is parental responsibility?

Parental responsibility is defined as ‘all the rights, duties and responsibilities and authority that a parent of a child is granted by law’. Mothers have automatic parental responsibility for a child.

Fathers have parental responsibility if they are registered on the child’s birth certificate and the child is born after 1st December 2003, or he is married to the child’s mother, otherwise he can get parental responsibility by agreement of the mother or a Court Order.  A father’s parental responsibility can only be terminated by Order of the Court, for example if there was domestic abuse and this was not in the child’s best interests. It is not in any way connected to whether the parents live together, how often the child sees the father or the mother’s remarriage.

If you have parental responsibility for a child you don’t live with, you don’t necessarily have a right to contact with them - but the other parent still needs to keep you updated about their well-being and progress.

What is a Parental Responsibility Order?

A Parental Responsibility Order can be applied for under the Children Act 1989. Fathers can apply for this if the mother refuses to allow the father to be registered on the birth certificate, or refuses to sign a Parental Responsibility Agreement. This Order enables the father to have joint parental responsibility with the mother.

Are there issues I may face as the father as opposed to the mother?

Traditionally, mothers were considered as the main carers of children, but now there is a shift towards a more shared care approach as people’s lives and working patterns have changed. The main issue which a father may encounter is that he did not acquire parental responsibility at the birth of the child as he was not registered on the birth certificate, whereas mothers have this automatically.

Each case is based on its own circumstances. There can be many issues which arise within Court proceedings such as domestic abuse, mental health issues, substance abuse issues and issues which put the child at a risk of harm. These can apply to both mothers and fathers.

What will a court want to know?

Prior to the First Hearing (FHDRA), CAFCASS will undertake police and social services checks. They will also speak to all parties involved to ascertain their views to enable the Court to have this information in readiness for the FHDRA. This will then be documented into what is called a Schedule 2 letter which will be sent to all parties and the Court prior to the FHDRA.

The Court believes that Orders should only be made if absolutely necessary and will not make an order unless the welfare of the child requires it. This is referred to as the ‘no order principle’.

The Court will apply Section 1 (3) of the Children Act, which is referred to as the ‘Welfare Checklist’ and will make an order which is in the best interests of the child involved. A child’s welfare is always the paramount consideration.

The Welfare Checklist takes into consideration the following factors:-

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

The Court will then make an Order which is appropriate within the circumstances of the individual case.

What about child maintenance?

The Court does not have power to make any orders about child maintenance. This is dealt with through the Child Maintenance Service (CMS) in which an application would need to be made to them. The amount of maintenance that the non-resident parent would receive is based on the amount of nights each year that the child spends with that parent.

In certain circumstances, if possible, under the Children Act 1989, an application can be made for ‘one off’ financial provision for children. This type of application may be useful for children of unmarried parents. Generally speaking, children of divorced parents will be provided for within the context of the financial orders that the Court makes upon divorce.

 

If you would like to discuss your situation further with one of our specialist children’s solicitors, please call 01225 485700 or email hello@mowbraywoodwards.co.uk

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Lucy Terrell

Lucy Terrell

Solicitor, Family Law

01225 485736

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