Helpful legal advice for children issues

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.

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.

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.

In coming to a decision it is important to bear in mind that the court will give the following three principles the utmost priority:

1. The children’s welfare is of the paramount importance;
2. The court shall have regard to the general principle that any delay is likely to prejudice the welfare of the children; and
3. 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.

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.

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

The conditions for fathers automatically gaining parental responsibility varies throughout the UK. A father can however apply to the court to gain parental responsibility.

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.