A Guide to Children's Cases
Introduction
By 'children's case' we mean disputes between parents (and some times other relatives such as grandparents) concerning arrangements for children.
Orders a Court can make
Courts can resolve disputes by making the following orders;
A residence order, will determine who a child will live with.
NB. A Court can make a shared residence order.
A contact order, will determine how often the child will see the parent he/she does not live with.
NB. Contact orders can be visiting or staying. Holidays too are often an issue.
A specific issue order, as the name implies, will determine specific issues such as the school the child will attend or the surname he/she will use.
A prohibited steps order, will limit either parent in what they cannot do with the child, for example remove the child from the country.
Parental responsibility
Parental responsibility means all those 'rights duties powers and responsibilities' which by law parent has in relation to a child.
Where the mother and father of a child are married they will both automatically acquire parental responsibility. When the parents are not married Only a mother will automatically acquire parental responsibility. In these instances, the father can acquire parental responsibility by agreement with the mother (a formal parental responsibility agreement) or by an order of the Court. There is a general presumption in favour of a father being granted parental responsibility.
Principles to be applied
In resolving any of these issues the Court will regard the child's welfare as the paramount consideration.
The Court will specifically have regard to factors such as
(a) the ascertainable wishes and feelings of the child
(b) the child's physical, emotions and educational needs.
(c) the likely effect of any charge in circumstances.
(d) age, sex, background etc.
(e) any harm suffered or which he might be at risk of suffering.
(f) capability of either of the parents to meet those needs.
There is a general principle that a Court will not make an order unless it has to. In other words (for example) residence and contact orders are no longer routinely made when parents divorce. If parents can sort out themselves then of course an order is not required.
Proceedings
If parents cannot resolve these issues by agreement then either may make an application for an order.
The court fee for filing an application is £120
Commonly there will be three hearings in the process of reaching a decision.
(a) at the first hearing the Court will facilitate a negotiated resolution by encouraging mediation at Court. If that does not succeed the Court is likely to ask the Court Welfare Officer to prepare a report. The Court Welfare Officer is often described as the judge's "eyes and ears" and the report is generally highly significant in resolving the case.
(b) at the second hearing, the Court and the parties will have had access to the Court Welfare Officer's report and will be encouraged to negotiate a settlement which takes account of the recommendations. If there is still no agreement the Court will usually set a final hearing and make ancillary directions such as filing of witness statements.
(c) at the final hearing the Court will hear evidence and make an order to determine whatever issues are unresolved.
Interim orders: proceedings of this sort can take in the region of twelve months to reach a conclusion. It is therefore not unusual for a judge to make an interim order.
In children's cases, no order is a final order. This means that it is usually possible to come back to Court and ask the judge to review the existing arrangements and (for example) to change contact and even (exceptionally) residence arrangements.
But beware: a parent who applies too often may find that the judge restricts his right to apply in the future.
Automatic consequences of a residence order
Where a residence order is in force, no person may
(a) cause the child to be known by a new surname.
(b) remove him from the jurisdiction of the Court without the consent of all persons having parental responsibility or leave of the Court.
BUT: the person who has residence may take the child abroad for not more than one month regardless.
Financial provision for children
Where neither parent is in receipt of welfare benefits (excluding child benefit) they can agree what financial provision is appropriate without involving the Court or the Child Support Agency.
Where the parent with residence of the child is in receipt of benefits, the Child Support Agency will determine what maintenance must be paid by the other.
In almost all cases where the parents cannot agree what maintenance should be paid, the Child Support Agency will determine the issue.
The Court has a residual jurisdiction to determine child maintenance in a limited number of cases, particularly when there is a written agreement.
The Court can also (but rarely does) make capital and property orders to benefit a child.
Alternative Dispute Resolution
Court proceedings are not the only means of resolving any issues let alone disputes between parents regarding arrangements for their children.
Alternative means of resolving disputes do exist particularly mediation.
The mediation process involves a trained mediator sitting with parents to try to talk through the difficulties and thereby facilitate a settlement.
Both parents may (where appropriate) be encouraged to make compromises.
This note is intended as a general guide to the issues and terminology involved in children's cases. It is necessarily not a comprehensive exposition. The application of these rules will vary according to the facts of individual cases.
Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.
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