Guide to Family Law
In many cases, the parents themselves will be able to reach an agreement as to where their children should live and how often the children should see the other parent. However, we recognise that it is not always possible to reach a mutual agreement, especially where the relationship has recently come to an end.
Our childcare team are experienced negotiators who understand the importance of reaching an amicable and practical agreement after separation. Our aim is always to try and reach an agreement without having to go to Court, but if that is not possible, our team has years of court experience.
Below we outline some of the disputes which often arise in relation to children when a relationship breaks down, and how we can assist:
Parental Responsibility
Parental responsibility is the right a parent has to make the decisions which affect their child. Whilst this right does not allow a parent who is not living with the child to interfere with the day to day decisions which affect the child, it does entitle that parent to make significant decisions relating to the child such as whether their child’s name should be changed, and what kind of medical treatment their child should have.
Unmarried parents should be aware that whilst the mother of a child automatically has parental responsibility, the father of the child will not have automatic parental responsibility unless he was married to the mother at the time of the child’s birth or he subsequently married the child’s mother. A father can however acquire parental responsibility in a number of other ways:
- By entering into a parental responsibility agreement with the mother;
- If the child was born after 1 December 2003, the father will acquire parental responsibility if his name was entered on the child’s birth certificate
- If the father is granted a residence order, the Court will also make a parental responsibility order;
- By application to the Court for a parental responsibility order.
In many cases, the parents will be able to agree whether the father should have parental responsibility and either enter the father’s name on the birth certificate or enter into a parental responsibility agreement to reflect this understanding. However, if no agreement can be reached, the father will need to consider making an application to Court. We can offer advice, assistance and representation in relation to the application and the Court procedure. Similarly, we can also offer parents advice and assistance if an application has been made by an ex-partner for a parental responsibility order.
In any application, the Court will consider whether it is in the child’s best interest to make a parental responsibility order. The Court will look at evidence of commitment by the father to the child, evidence of the degree of attachment between father and child and the father’s reasons for making this kind of application.
Residence
When a relationship breaks down, one of the biggest decision parents will have to make is where the child should live. Parents will often be able to decide this between themselves, as one parent may be the primary carer and the other parent accepts that it would be best for this arrangement to continue.
If no agreement can be reached, there are other options available which are aimed at reaching a mutual agreement as quickly and amicably as possible, such as mediation and negotiation through solicitors.
If it becomes necessary, the Court may need to be asked to intervene and we can offer advice and assistance in relation to making an application to Court for a residence order. A residence order will settle the arrangements to be made as to which person the child should live with. A residence order can be made in favour of more than one person, and the Court can make a joint residence order in favour of both parents.
The Court’s paramount consideration will be the best interests of the child. The Court will also consider a number of factors which are known as the ‘welfare checklist’ before making its final decision. The checklist is as follows:
- the ascertainable wishes and feelings of the child (in light of his age and understanding);
- the child’s physical, educational and emotional needs;
- the likely effect on the child of any change in circumstances;
- the child’s age, sex and background;
- any harm which the child has suffered or is at risk of suffering;
- how capable each parent, any other person the Court considers relevant, of meeting the child’s needs;
- the range of powers available to the Court under the Children Act 1989.
Contact
The next decision parents will have to make is arranging contact between the child and the now non-resident parent. Parents will often be able to sort out the arrangements between themselves or through negotiations between their solicitors.
If no agreement is reached, a parent can apply to the Court for a contact order. If the parents are agreed that there should be some contact, but are unable to agree over the amount of contact one parent should have, either parent can make an application to Court for a ‘defined contact order’.
There is a general presumption that contact with the non-resident parent is in the child’s best interests, although there are exceptions to this general presumption. The Court will consider the welfare checklist and will decide what, if any, contact should be given.
If a contact order is made, it will require the person with whom the child lives with to allow the child to visit or stay with the non-resident parent. The order can set out a timetable for contact, with dates, times and the duration of the contact sessions and whether there should be staying contact. The order can also be flexible with only the frequency of the contact stated in the order. It will then be left to the parents to decide how to put the order into practice.
Will my children’s views be taken into account?
The views of the child will be taken into account by the Court, although the Court will also take into account the age and maturity of the child. There is no particular age after which the child is ‘old enough’ to state where he would like to live. It will depend entirely on how mature the child is.
Financial maintenance for the children
Parents have a legal obligation to financially maintain their child. This obligation exists even if the parents have never been married to one another, and will continue if the parents then separate from one another. This obligation will continue until the child reaches 16 years old, and continues further if the child remains in education until they are 19 years old. The parents can also agree that the financial maintenance should extend beyond this age to include while the child attends further education or if there are special circumstances such as a child’s disability.
The child support agency will regulate how much maintenance a non-resident parent should pay for their child. It is also possible to apply under the Children Act for an additional lump sum payment, or increased maintenance, particularly if the non-resident parent is wealthy.
Looking to adopt…
If you want to adopt a child, it is no longer the case that you have to be married. Unmarried couples, those in same sex relationships and single persons can now adopt.
Once you have adopted a child you will become the child's legal parent, and the child’s natural parents will no longer have any rights or responsabilities towards the child. Adoption is therefore a major decision, in both the child’s life and your life. We can advise and assist you with regards to the legal implications.
If you decide to proceed, we can discuss your adoption application with you prior to, or just after your application is considered by the adoption panel.
Assisted reproductive technologies
There has been a recent court case in the European Court of Human Rights where a couple had frozen embryos whilst they were in a relationship with one another, but the couple had then split up. The Court refused to allow the applicant to use the fertilized embryos as the Respondent had refused to consent to the eggs being used. This decision may have been very different if the couple’s intentions had been clearly recorded at the time the embryos were frozen, and then consent was subsequently withdrawn. However, this kind of situation has not been tested in a Court, so there is no way to tell which way the Court would decide.
However, If you and your partner are undergoing any assisted reproductive technologies (such as IVF, surrogacy and/or donor insemination) to try to have a baby then it would be sensible to clearly record, whilst undergoing treatment or upon separation, what you want to happen to the sperm, eggs and/or embryos. We can advise and assist you in relation to preparing this kind of documentation.
Domestic Abuse
If you are suffering from domestic abuse, the top priority will be your immediate protection. We would always advise you to contact the police immediately if you are subject to an attack by another person.
We can then provide advice and assistance in relation to your rights and the legal options available to protect yourself and your children. This may involve writing a warning letter to the person or making an application to court for an injunction.
The Court has the power to make an injunction if an application is made by a person ‘associated’ with the other party. This would include applications against former and current live-in partners, family members, and those who have lived or are living together (otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or boarder). Some of the injunctions available are:
- An occupation order, which can allow you to re-enter the property and/or force your partner to leave the house and not to return for a specified amount of time (usually a minimum of 6 months).
- A non-molestation order, which prohibits your partner from molesting you. This includes any form of mental abuse, harassment and physical violence. There is now an automatic power of arrest, which provides an immediate power of arrest if the non-molestation order is breached
- An undertaking, which is a formal agreement between you and a partner. If your partner breaks the terms of the undertaking, it can lead to imprisonment.
- An order under the Protection from Harassment Act.
This guide is provided for information purposes only. Its contents do not constitute legal advice and should not be regarded as a substitute for specific legal advice. All details are subject to change. © Foot Anstey 2007. All rights reserved.
