Helping you make decisions for your family
Although most people will try to avoid disagreements over the future arrangements for their children, it is not always possible to do so.
At Rayden Solicitors, we believe that a parent or carer who knows where they stand in the eyes of the law is best placed to reach an early and sensible compromise to the dispute before them.
Rayden Solicitors can advise in relation to all disputes about children whether the problem is financial or practical (such as where a child will live or go to school). We are able to help with sensitive issues such as paternity and to arrange emergency intervention in possible cases of abduction.
Rayden Solicitors understand how difficult disputes about children can be and will give practical advice helping you to resolve the situation. We are experienced in every stage of the process; from initial negotiations and meetings through to the preparation of Court proceedings, obtaining expert evidence and preparing for final hearings.
Rayden Solicitors do not undertake public law children work.
Parental responsibility means the legal rights, duties, powers, responsibilities and authority that a parent has in respect of a child ie. the right to be involved in the decision making regarding the child. A mother automatically has parental responsibility in respect of the child. A father will automatically have parental responsibility in respect of the child if he is married to the mother when the child is born. Unmarried fathers will have parental responsibility in respect of the child if their name is on the child’s birth certificate after 1 December 2003.
If a father does not have parental responsibility he can acquire it by entering into a parental responsibility agreement with the mother and filing this with the court or he can apply to the court for a parental responsibility order.
Step parents can obtain parental responsibility if they are married to the mother or they are a civil partner of a parent who holds parental responsibility in respect of the child and they either:
- Enter into a parental responsibility agreement with the parents who hold parental responsibility in respect of the child and file the agreement with the court; or
- Apply to the court for a parental responsibility order.
Parental responsibility can also be acquired by individuals who are not the child’s parent by obtaining a “lives with order” from the court in respect of the child or by adopting the child.
Residence and contact
Often when parties separate disputes arise regarding the children, such as where the child shall live and how much contact they should have with the non-resident parent.
If the parents do not agree with where the child shall live or how much time the child shall spend with each parent, either party can apply to the court for a child arrangements order under the Children Act 1989. If the issue in dispute is where the child shall live, then the application to the court should be for a “lives with order” (previously known as a residence order) and if the dispute is in respect of how much time the child should spend with the non-resident parent, then the application to the court is for a “spends time with order” (previously known as contact). A “spends time with order” can include direct contact, supervised/supported contact and indirect contact such as letters/FaceTime.
Specific issue order
Disputes may arise between the parents on specific issues such as what school the child should attend, what medical treatment they receive or what name the child should be known by. Before such decisions are made the parent making the decision must obtain the consent of all those who hold parental responsibility in respect of the child. If an agreement cannot be reached, then an application can be made to the court by either parent for a specific issue order to determine the particular issue in dispute.
Prohibited steps order
If one parent becomes aware that the other parent intends to take steps in respect of the child, which they do not agree with, they can apply to the court for a prohibited steps order. Examples of when this may arise include when one parent believes the child is at risk of harm and they apply to the court for an order preventing the other parent from removing the child from their care or one parent suspects the other parent intends to take the children out of the jurisdiction of England and Wales without their consent.
Temporary removal from the jurisdiction of England and Wales
If there are no court orders in place in respect of the child, then either parent wanting to take the child on holiday outside the jurisdiction of England and Wales will need to seek the agreement of all parties who hold parental responsibility in respect of the child. If a parent who has parental responsibility unreasonably refuses to allow the other parent to take the child out of England and Wales on a temporary basis such as for a holiday, an application can be made to the court to seek permission to take the children away. If a parent has a “lives with order” in respect of the child, then they can take the child out of the jurisdiction of England and Wales for a month without the requirement of obtaining the consent of all those who hold parental responsibility, however it is still good practice to inform those who hold parental responsibility in respect of the child about the holiday.
When parties separate it is commonplace for their circumstances to change. It may be that the primary carer of the child wishes to return to their home country or is offered a job in a different country. In such circumstances the primary carer of the child will need the consent of all individuals who hold parental responsibility in respect of the child. If the non-resident parent does not consent to such a move, an application can be made to the court for permission to permanently move the child to a different country.
When considering all of the above applications the court’s most important consideration will be the child’s welfare. The court will also take into consideration the following factors when considering any application:
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.
These factors are set out in the Children Act 1989.
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