Arrangements for Children Fact Sheet
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This is a summary of the basic procedures involved if you intend making any claims in respect of children. Most court applications concerning children are made under the Children Act 1989, whether or not the parents are, or have been, married. This guide is intended to explain the procedures used in Children Act applications.
The most important legal principle when dealing with Children Act applications is the WELFARE PRINCIPLE. This means that when the court is deciding with which parent a child should live, or how often that child should see each parent, the court will make the decision on the basis that the welfare of the child is the most important and overriding consideration. There is a checklist within the Children Act which gives the court guidance on how to make their decision. Briefly the checklist is as follows:
(i) the wishes of the child (in the light of the child's age and understanding)
(ii) the child's physical, emotional and educational needs
(iii) the effect of any change in the child's circumstances (e.g. moving home, school)
(iv) the child's age, sex, background and special characteristics (e.g. disability)
(v) any harm the child has suffered or is at risk of suffering
(vi) how capable each of the child's parents or guardians is of meeting the child's needs.
The checklist is not exhaustive and any other relevant factor will be considered by the court. If there is general agreement between parents about the arrangements for a child’s care, then the court will make no order. This is because the court wants to encourage parents to reach agreement and will therefore only intervene to make an order if necessary.
2. What orders can the court make?
There are four main orders (apart from financial orders) that can be made in Children Act applications:
- A CHILD ARRANGEMENTS ORDER – an order deciding with which parent a child should live and what arrangements should be made for that child to spend time with the other parent.
- A PROHIBITED STEPS ORDER - an order preventing a person from taking a step in connection with a child e.g. a parent removing a child from the country.
- A SPECIFIC ISSUE ORDER - an order deciding on a particular matter relating to a child e.g. deciding which school a child should attend.
- A PARENTAL RESPONSIBILITY ORDER – an order granting parental responsibility in respect of a child.
3. Parental Responsibility
PARENTAL RESPONSIBILITY refers to all the rights, duties, powers, responsibilities and authority which by law a parent has in respect of his/her child. Some decisions that can be made if you have Parental Responsibility are where a child is to go to school, what medical treatment they should receive and what, if any, religion they should follow. It does not mean day to day decisions such as how you dress your child or what your child eats.
All mothers have Parental Responsibility, regardless of whether they are or were married to the child's father. Whether a father has Parental Responsibility depends on whether he was married to the mother when the child was born or subsequently married the child's mother. If he was or is still married to the mother then he too will have automatic Parental Responsibility. For children born since December 2003, unmarried fathers have Parental Responsibility if their name was registered on the child’s birth certificate.
If a father without Parental Responsibility wants to acquire it, he can
a) Agree with the mother that he should have Parental Responsibility. A standard form granting Parental Responsibility will then be completed and signed by both parents. The document is lodged at the Principal Registry for sealing. Sealed copies will be sent to each parent from the Principal Registry.
b) If no agreement is reached, a natural father can apply to the court requesting a Parental Responsibility Order.
The court will then consider three main factors:
(i) the degree of commitment which the father has shown towards the child
(ii) the degree of attachment which exists between father and child
(iii) the motivation of the father in applying for the order.
An order is likely to be made if the father sees the child regularly, they have a good relationship and the father is making the application because he wants to be more involved in making important decisions about the child.
If separated parents each have Parental Responsibility they will be able to take decisions regarding their children separately from one another. In the event of any dispute, the court will decide the issue, e.g. what school a child attends, on the basis of what is best for the child.
4. Who can apply?
A biological father can apply for a Parental Responsibility Order. In some circumstances, step-parents and civil partners of a parent can also apply. A carer who obtains an order that a child should live with them under a Child Arrangements Order will automatically have parental responsibility for the child for the duration of the order.
5. What happens if I have to go to court?
We would prepare an application for you, which you would approve and sign. This application is then issued at court and the other parent is sent a copy. An organisation known as ‘CAFCASS’ will then be asked to carry out some background checks, for example with the child’s school, with the police and with social services, so that the court can be told about any relevant information before the first hearing. This is an informal hearing where a mediator or a Child and Family Reporter may be present. The Child and Family Reporter is a part of CAFCASS, and is there to assist the court in cases involving children. At this appointment the court need not make any orders. Usually, the judge will try to help the parents to reach a sensible agreement in the interests of the child. If agreement is reached, a final order may be made, or the matter may be listed for review after an agreed period of time.
Children Act hearings are held "in chambers". This means that they are held in private and only the parties and their representatives are present. Family members or partners are not allowed in the court room. In theory, accredited members of the press can attend court, although they can be excluded by the judge in some circumstances. In practice, the press rarely attend court unless the case is a matter of public interest.
If no agreement is reached at the first hearing, the court will consider what information it needs to make a decision. The court will usually order CAFCASS to prepare a report with recommendations, based on interviews with all concerned parties and the child. Very often the court follows those recommendations since the role of CAFCASS is to provide an objective and independent opinion about the issues in the case. CAFCASS are usually given approximately 4 months to prepare a report. The court may also order statements to be prepared by both parents, setting out what arrangements they think would be best for the child, and why. It is important to remember that any evidence filed in these proceedings, including the CAFCASS report and the parties’ statements, is confidential, and must not be disclosed to third parties.
A final hearing date will be fixed when the CAFCASS report is ready. Both parties must attend court to give evidence and a final order will then be made.