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The law relating to children was significantly amended with the introduction of the Children Act 1989 which abolished the concept of ‘custody’, although the term continued to be used by the public and the media alike. The law now provides that married parents share parental responsibility which continues even after divorce. The overriding principle of the Children Act is that the welfare of any children is of paramount importance. |
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PARENTAL RESPONSIBILITY
Having parental responsibility entitles each parent to share in the decision-making process in relation to their children, in particular with regard to important aspects of their lives such as education, religious upbringing and their health. The intention is that the parties discuss any issues relating to their children with a view to reaching agreement on decisions that need to be taken. Unmarried fathers do not necessarily have parental responsibility. They can obtain such responsibility with the written consent of the mother by court order or if registered as the father on birth certificates in relation to children born after 1st December 2003. |
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COURT ORDERS RELATING TO CHILDREN
The law encourages parents to resolve any arguments between them regarding their children by negotiation and agreement. The court will only intervene as a matter of last resort and then only in accordance with what is in the best interests of the children. In the event that parents cannot agree the arrangements for their children on the breakdown of their relationship, the court has power to make the following orders: |
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Residence Order
This determines with which parent the child will live.
Contact Order
This determines the frequency and extent of the contact a child will have with the other parent. This may include ‘staying contact’ whereby the child can stay overnight or for longer periods with that parent.
Prohibited Steps Order
Such an order is intended to prevent certain events from happening. For example, the court may make an order preventing the child from being removed from the U.K. without the consent of the other parent.
Specific Issue Order
Such an order will be made when the court is called upon to decide on important issues regarding a child’s upbringing. For example if the parents are unable to agree on the child’s religion, education or change of surname, then the court will decide for them. |
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It is worth noting that even when the court is asked to intervene, it will at every stage of the procedure explore the possibility of agreement between the parents. In cases where there is no agreement the court may refer the case to CAFCASS for investigation and the preparation of a report by one of its Child & Family officers.
CHILD SUPPORT AND FINANCE
Responsibility for assessing how much the parent who does not live with the child after divorce or separation should pay towards the support of the child rests in most cases with the Child Support Agency (CSA). The amount is based upon a set formula. Where there is one child the non-resident parent is obliged to pay 15% of his/her net income. Where there are two children it is 20% and where there are three or more children it is 25%. For this purpose ‘net income’ is defined as gross pay less tax, national insurance and pension contributions.
The amount of child support may be reduced if the child stays regularly overnight with the parent liable to pay child support. If one parent lives outside the U.K. or where a step-child is involved the CSA does not have jurisdiction and the responsibility passes to the court. It is always preferable that the parents should reach agreement as to the amount of child support to avoid the need to involve either the CSA or the court.
ADOPTION
Adoption is a way of providing a new family for a child when living with their own family is not possible. It is the means of giving a child an opportunity to start again; for many children adoption may be their only chance of experiencing family life.
Adoption is a legal process in which an application is made to a court for an Adoption Order. Generally, no order can be made without the child attending the court hearing. The court’s only consideration is the welfare of the child. The court can attach conditions to an Adoption Order, such as allowing the natural parent to have contact with the child or as to his or her religious upbringing.
An Adoption Order severs all legal ties with the birth family and confers parental rights and responsibilities on the new adoptive family. The birth family no longer has any legal rights over the child and is not entitled to claim them back. The child becomes a full member of the adoptive family, taking their surname and all the rights and privileges as if they had been born into the adoptive family, including the right of inheritance.
PUBLIC LAW CHILD CASES
From time to time, children are removed from their parents by the Social workers of a Local Authority, sometimes because the parent is unable to cope for example on account of illness, or sometimes and more seriously, because the child is at risk of harm from his or her parent(s) and is in need of protection. Such times are incredibly stressful for children and parents.
Children can be removed on a temporary basis when the children are accommodated by the Local Authority but not made the subject of care proceedings and placed on the Child Protection Register. In such cases, we are able to advise and assist parents in their negotiations with Social Services and attend or advise in respect of Child Protection conferences.
In the more serious cases, the Local Authority will institute care proceedings, legal proceedings in which they ask the Court to make one of a number of orders, the most frequent of which are as follows:
Care Order.
This order places a child under the care of the local authority, which then shares parental responsibility for the child with the parents. It is however the Local Authority which makes most of the important decisions about the child’s upbringing, such as where they live and are educated. An order can only be made for a child under 17 years old and can last only until their 18th birthday.
A court can only make a care order if it is satisfied that the child is suffering or likely to suffer significant harm; the harm has been caused by the child’s parents; the harm would be caused because of insufficient care being given to the child by the parents in the future or the child is likely to suffer harm because they are beyond parental control.
Supervision order
The court may decide that it is not necessary to make a care order but nevertheless still have concerns for the welfare of the child if he or she is returned to their parents. In such circumstances, the Court can make a supervision order, whereby the parents are in effect supervised by a Social worker for a while to make sure the child is well cared for.
Placement Order
This is an Order authorising a local Authority to place a child for adoption where there is no parental consent or where it is appropriate that parental consent should be dispensed with. Placement by consent is the free and unconditional agreement of the parent of a child to the adoption of that child, although the consent can be withdrawn at any time until the adoption order is made.
Public law is a very complex and stressful area of law in which we have considerable experience of advising and acting for parents.
