Helpful legal advice for children issues
10 mins readRead below to find out what legal proceedings you need to go through regarding children. With specialist solicitors who have expert knowledge in all areas surrounding children issues, we can assist and provide advice on:
- Divorce and children matters
- Parental rights and responsibilities
- Prohibited Steps order
- Specific issues order
- Removal of a child from jurisdiction
- Special Guardianship Order
- What happens to my child if I die?
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1. Children matters within divorce proceedings
- Child Arrangements Order
- The First Hearing before the Family Court
- Final Hearing
- The Court’s Approach
It is vital at the time of divorce that children in the marriage are not forgotten. Most parents will agree the arrangements for the children when they divorce. Where the parents cannot agree, the courts can become involved and will decide what arrangements are in the best interests of the children.
We can help in the negotiation of an agreement between the parties regarding the children and if this is not possible to achieve then we will assist you in making the relevant applications to the court.
See our law proceedings for children matters below.
Lodge Application with the Family Court
- Court fee of £255
- Completed Form C100
- Completed Form C1A (if applicable)
- MIAM Certificate (unless exempt)
Notice of Proceedings
(Typically 4-6 weeks after lodging the Application(s) with the Court)
- Upon allocation the Court is likely to list a Gatekeeping Hearing to consider matters furthers, in light of CAFCASS’ Initial Safeguarding Letter.
- CAFCASS will be directed to file and serve their initial Safeguarding Letter (normally 3 days prior to the Gatekeeping Hearing).
CAFCASS Initial Safeguarding Letter
- CAFCASS will undertake checks with the Police, Social Services and their own records.
- CAFCASS will contact you regarding the proceedings and discuss with you your views and concerns you may have about your ex-partner.
- CAFCASS will make recommendations to the Court regarding what should be considered at the Gatekeeping Hearing.
- CAFCASS’ initial Safeguarding Letter will be disclosed normally 3 days prior to the Gatekeeping Hearing.
Directions Hearing/ DRA/FHDRA/FFH
- Where a FFH is required, this will be convened for the Court to establish the “facts” for the purposes of the case.
- Court will review all evidence disclosed currently.
- In the event a settlement cannot be agreed, then the Court will attempt to limit the outstanding issues and list a further Directions Hearing or a DRA.
- In the event that the issues outstanding are limited, then a Final Hearing will be listed.
Common Directions by the Court
- CAFCASS to undertake a s7 Report.
- Exchange of written Statements of Evidence.
- Disclosure from GP’s regarding medical records.
- Hair strand testing for alcohol and/or illicit substances.
- Interim Contact, either contact in the community at specified times/dates or Supervised contact through a contact centre or trusted third party.
- Fact Finding Hearing (FFH) listed.
Gatekeeping Hearing
- Normally takes place about 6-8 weeks after receiving the Notice of Proceedings.
- Court will consider CAFCASS’ recommendations within their Safeguarding Letter and make further directions.
- Neither party will need to attend the hearing.
- The Court Order following the hearing will be received approximately 3-5 weeks after the hearing –the next hearing will be either a Directions Hearing, Dispute Resolution Appointment (DRA) or a First Hearing Dispute Resolution Appointment (FHDRA).
Common Directions by the Court
- CAFCASS to undertake an Addendum Report.
- Exchange of a further written Statement.
- Parties attendance at a Separated Parents Information Program (SPIP).
- Exchange of Position Statements regarding proposal for future child arrangements.
Final Hearing
- A Final Hearing will commonly be listed for either 1-2 days, dependent on the complexity of the matter.
- Parties will be directed to provide oral evidence and will be cross-examined.
- CAFCASS along with any other applicable expert, will be present to give evidence and to be cross-examined, if directed to attend by the Court.
- The Court will consider all the evidence within the case and make a Final Order that it is in the best interest of the child(ren)
Child Arrangements Order
If you wish to secure the living arrangements for your children or you seek to spend time with your children, you may need to obtain a Child Arrangements Order from the Family Court sitting in the local area of where the children live (unless matters are complex and warrant the involvement of the High Court).
A Child Arrangements Order sets out arrangements as to whom a child is to live with and what time the child is to spend with the other person. Previously, such an Order was referred to as a Residence Order or Contact Order. A Residence Order and a Contact Order granted prior to 22nd April 2014, will continue to be in force unless it has been varied/discharged by further Order(s) of the Court.
A person who is named in a Child Arrangements Order as a person with whom the child is to live, may take that child out of the jurisdiction of the UK for a period of up to one month (same as if the named person had been granted a Residence Order).
Before a parent or other family member can apply to the Family Court for an Order under section 8 of the Children Act 1989, they must first attend at a MIAM unless they are exempt. A MIAM is an initial meeting with a mediator who is trained to work out whether mediation is right for you. A mediator is an impartial third party who attempts to mediate between parties and reach an amicable agreement. A person is exempt from attending at a MIAM if:
- the matter warrants an urgent hearing, an application needs to be made without notice to the other parent/person with parental responsibility as there is a risk of harm to a child
- a child is about to taken out of the jurisdiction of England and Wales without the consent of a parent/person with parental responsibility and/or
- there has been domestic abuse/harm and/or there is a risk of harm
Upon receipt of an application, the court undertakes a gate keeping exercise and decides whether an applicant has shown s/he is exempt and lists a hearing date OR decides that the parties should attempt mediation.
The First Hearing before the Family Court
Your application will be listed for a short hearing, known as a First Hearing Dispute Resolution Appointment. The hearing will last for approximately half an hour. The other parent is required to attend at this hearing unless the application is being heard without notice to the other parent, for which there would need to be very good reasons. Children, family members and/or friends of either party are asked not to attend at the hearing.
The purpose of the hearing is for the Court to see if an agreement can be reached between you and the other parent. An agreement at this stage would save time and money and avoid the stress and strains of litigation, provided the Court approves such an agreement.
A Children and Family Court Reporter from CAFCASS will be present at court. He or she will meet with you prior to the court hearing. The CAFCASS officer will ask the parties for their views and opinions. CAFCASS will help the parties to reach an agreement if possible. This time set aside for negotiations usually enables us to better identify the other parent’s position and any specific objections. These particular negotiations would be ‘without prejudice’; they could not be referred to in open court and should enable you and the other parent to explore possible solutions without the Court hearing about the path of the negotiations.
If it is not possible to reach an agreement then the negotiations will end and you will go before the Court. When you are before the Court, the Judge or Lay Magistrates will give directions for the future conduct of the case. These may include setting a general timetable for the conduct of the case. The Court may also ask the Children and Family Court reporter to investigate the case, to prepare a report and attend the final hearing to give oral evidence. Alternatively, the Court may chose to rely on statements from you and the other parent. In some cases, the Court may consider it necessary to convene a Fact Finding Hearing, where the Court will consider the allegations made by the parties against the other and the disputed issues to determine whether the alleged incident(s) took place.
As you can see, a Directions Hearing is purely procedural. Neither of you will be required to give formal evidence at court.
Final Hearing
If the matter cannot be agreed then it will proceed to a final hearing. The report made by the Children and Family Court Reporter will not be disclosed to you until two or three weeks before the final hearing. The report is highly persuasive at the final hearing as the Judge/Lay Magistrates are often reluctant to ignore a specialist’s opinion.
If you have not been able to reach an agreement by the time of the final hearing, then the final hearing will take place. We will instruct a barrister to attend on your behalf at that hearing.
At a final hearing, the parties will be required to give evidence on which you will be cross-examined by the other parent’s barrister if they have one. You may be re-examined or asked further questions by your barrister in respect of any matters arising out of the cross-examination process. We will explain the process more fully if we reach that stage. The other parent will then be required to give evidence. S/he will be cross-examined by your barrister. S/he may subsequently be re-examined by his/her own barrister.
The Court will then make a decision, usually giving in full the reasons for the judgment and on occasions, the judgment will be reserved. This means that the Court does not give a decision on the day but lists the matter for a further short hearing a week or so later and will then provide the judgment and reasons to the parties.
The Court’s Approach
In coming to a decision it is important to bear in mind that the court will give the following three principles the utmost priority:
- The children’s welfare is of the paramount importance;
- The court shall have regard to the general principle that any delay is likely to prejudice the welfare of the children; and
- The court shall not make an order unless it considers that doing so would be better for the children than making no order at all.
In deciding whether an order should be made, the court will have regard to the following factors:
(a) the ascertainable wishes and feelings of the children concerned (considered in the light of the child’s age and understanding);
(b) their physical, emotional and educational needs;
(c) the likely effect on the children of any change in their circumstances;
(d) their age, sex, background, and any characteristic of theirs which the court considers relevant;
(e) any harm which they have suffered or are at risk of suffering;
(f) how capable each of their parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs; and
(g) the range of powers available to the court under the Children Act in the proceedings in question.
2. Child maintenance
Child maintenance is financial support to help with a child’s everyday living costs and includes items such as food and clothing. It is usually the parent who does not have the day to day care of a child who is responsible for making child maintenance payments to the other parent.
Child maintenance can make a real difference to children as it can help pay for essentials items. It can also help to keep both parents involved with their children’s lives. Whatever type of maintenance arrangement you put in place, it is important to remember that it can help to give a child the best start in life.
It is also important to remember that paying child maintenance for your child is a legal responsibility.
Many families choose to arrange between themselves, by agreeing the amount and type of child maintenance that one will pay to the other. Our solicitors at Kew Law are here to help you work out such an arrangement.
If you cannot agree, or if an arrangement between parents is not working, there are other ways to arrange child maintenance. You could apply to the child maintenance service, which can set up an arrangement for you. We can assist you through the process.
Where parties are attempting to work out the arrangements for children and the payments which need to be made as part of the breakdown of a marriage, we can help you negotiate a child maintenance arrangement as part of a financial agreement, or we can act for you in financial proceedings where a settlement cannot be achieved, and where the payment of child maintenance will be decided upon.
3. Parental rights and responsibilities
- What do we mean by parental responsibility?
- How is parental responsibility lost?
- Applying to the courts for parental responsibility
- Alternatives to Court Proceedings
Unlike the mother of a child, where a couple are not married fathers do not automatically acquire parental responsibility. With more and more children being born outside marriage, there is greater uncertainty amongst parents about the legal responsibility they may have for their children.
What do we mean by parental responsibility?
Parental Responsibility is defined 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”. It concerns a different array of matters such as:
- General care – such as where the child lives, how much time they spend with other family members, other day to day matters and routine
- Education
- Medical treatment
- Religious upbringing
- Protection and maintenance
- Consent to marriage – if a child seeks to marry between 16 and 18 years
- Agreement to adoption
- Appointment of a guardian
The mother of a child automatically has parental responsibility for her child. A father will automatically acquire parental responsibility if at the time of birth, or any time after that, the mother and father are married.
A father who has not been married to the mother will automatically have parental responsibility if the child was born after 1st December 2003 and both parents register the birth with the father’s name on the birth certificate. If the child was born prior to 1st December 2003, then an unmarried father will not have parental responsibility even if his name is on the birth certificate.
In these circumstances, the father can obtain parental responsibility by:
- marrying the mother
- entering into a formal Parental Responsibility Agreement with the mother
- asking the Court to make a Parental Responsibility Order
An application to the Court can be made under the Children Act 1989. In deciding whether a Court should make an Order for Parental Responsibility, the Court will consider the degree of the father’s commitment to the child; the degree of attachment to his child; his reasons for applying for a Parental Responsibility Order.
A Parental Responsibility Agreement must be in writing. We can act for you in drafting the Agreement and provide you with full details of how to execute the Agreement.
How is parental responsibility lost?
Parental Responsibility is lost in two circumstances:
- Where a child attains the age of 18
- Where a Court Order terminates Parental Responsibility e.g. on adoption
Applying to the courts for parental responsibility
The conditions for fathers automatically gaining parental responsibility varies throughout the UK. A father can however apply to the court to gain parental responsibility.
Alternatives to Court Proceedings
Applications to the Court concerning children can be very difficult and an immense strain on the parents. At Kew Law, we will firstly always try to negotiate with the other parent to see whether an agreement can be reached. When both parties are aware of their legal rights this is often a realistic achievement.
Mediation is also an alternative to Court proceedings and Kew Law can make a referral to mediation and advise you during the mediation process.
4. Prohibitive Steps Order
As a parent you can apply for a Prohibited Steps Order. A Prohibited Steps Order is an Order whereby the Court can prohibit one parent from taking a certain action in respect of the child/children’s upbringing, e.g., to prohibit a parent from removing a child from school, changing a child’s surname, or making a specific trip with the other parent and which also prohibits a party from exercising their parental responsibility. For initial advice, our specialist children law specialists can talk to you about your concerns and can advise you on the detail of your proposed application.
5. Specific Issue Order
As a parent you can apply to the Court for a Specific Issue Order. A Specific Issue Order is a type of Court order granted by the Court which determines how a dispute over a child’s upbringing or wellbeing should be resolved. An application of this nature may determine a child’s religion, whether the child should have a specific medical procedure or where the child should attend school. Should you discuss any difficulties you are experiencing in agreeing on welfare considerations with the other party, you should not hesitate to contact one of our specialist family solicitors.
6. Removal of a child from this jurisdiction
Kew Law LLP Solicitors can provide advice on children matters and child abduction. When a relationship comes to an end the children can often be quite vulnerable especially if the parents could potentially return to different countries. If you are worried that your child may be taken out of the UK against your consent, then our family law solicitors can help. Often, we need to act quickly to protect the children and prevent removal of the child from this jurisdiction. If your child has already been taken against your consent, our solicitors can help resolve the situation.
At Kew Law, we have the knowledge and the know-how to help advise parents on what steps to take if their child is removed from the country without consent, or if they fear this might happen.
7. Special Guardianship
Our solicitors provide representation to foster carers, relatives and family or friends who wish to obtain advice on special guardianship. We will explain the process to you and discuss your options in applying for special guardianship as opposed to adoption or residence. This order is very unique as it allows you as the carer to exercise parental responsibility to the exclusion of the parents whilst still maintaining the child’s legal links with his parents. We represent many foster carers and family members who are supported by the local authority to make such applications to Court, and we will not only provide the advice you need but will be happy to make the application to the court on your behalf and represent at court if necessary.
8. What happens to my child if I die?
Careful planning for your children upon your death is something that we suggest that every parent should consider and in particular the following two questions:
- What will I leave my children?
- Who will care for my children when I am gone?
If your children are under the age of 18 it is important that you consider who will care for them upon your death. Although the surviving parent will automatically become the guardian of the children on the death of the other parent (providing the surviving parent has parental responsibility), it is also possible to appoint a guardian for a child in the event of both parents’ death. The appointed guardian will be granted parental responsibility and then assume the day to day care of the child.
Our solicitors at Kew Law LLP can talk to you about appointing a guardian in a will and the rights and responsibilities of a testamentary guardian. If you are a parent who does not have parental responsibility for your child and have concerns for your child if the other parent were to die, we can talk to you concerning your options.
Looking for help & advice for children’s legal issues?
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