Issues concerning Children, whether as a result of divorce, relationship breakdown or anything else, are governed by The Children Act 1989.
The Act sets down in law four very important principles:
• In all issues about children, the child’s welfare is first and paramount.
• Parents have responsibilities for their children, rather than having rights over them.
• Parents are usually the best people to know what is best for their children and should always be encouraged to work together to reach agreements.
• Courts should only intervene and make orders when it is necessary.
Under the old law, when parents divorced, custody and access orders were usually made about the children. However, these gave the impression that one parent was being shut out or had less of a say. Also the concept of ‘custody’ was a bit like a proprietorial right. The law is changed now to emphasise that parents have responsibilities rather than rights. In addition to their responsibilities, parents are now encouraged to decide together what is best for their children. The Court will no longer make any order about a child unless the parents really cannot agree and the Court is forced to decide for them. So the first and most important thing to understand is that the Family Court hopes and expects parents to take responsibility for their children and decide together what is best for their children. That said, there are a number of legal concepts created by the Act. The first of these is “Parental Responsibility”. Parental Responsibility enables a person to make decisions about a child’s upbringing, for example: where the child should live, what he or she should be called, which school to attend, whether to consent to medical treatments, and so on. It continues until a child is 18, although the children’s views become more important as they get older and teenagers may make some decisions for themselves. If one parent wishes to take the child overseas, either for a holiday or permanently, the consent of anyone with Parental Responsibility is needed.
Both parents will automatically have Parental Responsibility if:
• they were married to each other when their child was born, or
• they marry each other later
• For a child born after 1 December 2003 to parents who are not married, the father will have parental responsibility if he is named on the birth certificate.
To a child born before 1 December 2003, or after that date without the father’s name on the birth certificate, only the mother will automatically have Parental Responsibility. Unmarried parents can agree that they are both to have parental responsibility by signing a simple form. Making such an agreement is a positive sign to a child of his parents’ willingness to work together for his or her benefit.
If the mother will not agree that the father should have parental responsibility, he can ask the Court to make a ‘Parental Responsibility Order’. Unless there are reasons why the Court thinks it will not be in the child’s interests to have a relationship with the father, a presumption will be made that it is best for the child for the father to be given parental responsibility.
Parents who were married keep their parental responsibility if they separate or divorce, even if they do not live with the child. A parent will only lose parental responsibility if the child is adopted by someone else. A step-parent will not automatically acquire parental responsibility by marrying the child’s parent.
If a dispute arises between parents with parental responsibility, the best way forward for the whole family is to use whatever process will work best in getting the parents to come to their own agreement. This could be with the help of friends, therapists, mediators or other professional support. The Court takes the view that parents generally know what is best for their children and the parents are therefore free to make whatever agreement they believe to be in the children’s best interests.
If the parents cannot come to an agreement themselves, either of them can refer the matter to Court. If they do, the Court is able to make a number of different orders relating to children.
There are four different kinds of Court Order:
A Residence Order
This specifies with whom a child should reside. It does not remove parental responsibility from the other parent, but instead states where the child is to be predominantly based. It is possible to have shared residence orders but there is no presumption that this is best for the child. It would entirely depend upon the practical circumstances of the family in question. There is no presumption that time should be equally split between parents, and some Courts are reluctant to adopt this approach. It has been argued that it suggests the child is a commodity that can be shared equally. There are cases when the Court considers an equal division of time is best for a child, but there are many cases where it is thought better for a child to have main base, and to see the other parent regularly.
For every child, it will be necessary to look at the practicalities and decide what would be best for him or her.
A Contact Order
This defines the child’s contact with a person, usually the parent with whom the child does not reside. It defines how much contact there should be, when it should happen, and how it should happen – whether face-to-face, or other forms, such as letters or telephone calls. It can also be supervised contact, if for any reason it is thought best for the child not to be left alone with the other parent. The order requires the parent with whom the child lives to allow contact in whatever terms are specified.
A Specific Issue Order or Prohibited Steps Order
These orders enable the Court to decide particular questions concerning a child where the parents cannot agree. For example: where he/she should go to school, whether he/she should have medical treatment, any religious issues or whether the child should emigrate to live in another country. An order is either made to provide for something to happen (a specific issue order), or to prevent something happening (prohibitive steps order).
A Family Assistance Order This is where the Court considers it necessary for a CAFCASS Officer or the Social Services Department to advise and assist a family, with the parents’ agreement.
When a dispute is referred to Court, what principles does the Court apply in reaching a decision?
The Children Act 1989 provides the Court with a checklist to help it decide what is best for a child. This includes:
• the child’s own wishes and feelings, in the light of his or her age and understanding.
• the child’s age, sex and background.
• the child’s physical, emotional and educational needs.
• the ability of those concerned to meet those needs
• the likely effect of any change in circumstances.
The Court will decide what is best for the child. It will only make an Order if one is needed. It would prefer parents to agree if possible.
What is the procedure if a dispute is referred to Court?
The procedure is started by issuing an application in the local family Court setting out a brief statement of the issues. This is served on the other parent and both parents are given notification of an appointment at Court. Depending on the delays at Court, the appointment could be up to 2 months away. The papers are also sent by the Court to the local CAFCASS service. (This is an organisation of trained social workers who assist the Court in making decisions about children.)
At the appointment, both parents will be asked to explain briefly what the issue is, either themselves or through their solicitors. In many cases, unless there are reasons why it should not happen, the Judge will then invite the CAFCASS officer attending to go into another room with the parents to see if it is possible to resolve their differences and bring them to agreement.
If not, they return before the Judge, who makes an order setting out a timetable for the case. Both parents will be required to prepare full statements setting out their cases within certain time limits, and the CAFCASS service will be ordered to make a full report.
Many CAFCASS offices are overworked and underfunded. The quality of investigation, of reporting, and of keeping within the timelimits set by the Court are variable. The officer assigned to the case will meet both parents separately, and with the child/children. He/she will also speak to the children individually in a child-friendly environment and will visit the home/s. A full report is then submitted to Court with recommendations, based on the principles set out above that the Court is bound to take into account when making decisions concerning children. It usually takes several months for the CAFCASS officer to file the report.
It is very very unusual for any Judge to depart from the findings of the CAFCASS officer. An order will almost certainly be made in the terms of the recommendations in the report.
No costs orders are made in children proceedings.
Notwithstanding the commitment of the Family Division to deal with children cases more quickly than other cases, it can easily take 9 months or longer from issuing an application under the Children Act to obtaining an Order.
Court proceedings about children should be avoided if at all possible. The time taken, the cost, the acrimony and the uncertainty of the outcome make Children Act proceedings unpleasant and unhelpful for the family. Court proceedings should be an absolute last resort. Every effort should be made – through mediation, through solicitors, through therapists, through friends – to assist parents to come to their own decisions about what is best for their children.