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When marriages and relationships break down, those most affected by the sudden changes of circumstances are very often the children. Most parents will seek to put their children first at every stage of what follows separation or divorce. The law makes sure that this is possible, and that where necessary, the courts are able to step in to ensure the child’s welfare is first and foremost.
The legal position of children where family matters are concerned is set out in the Children Act 1989. The Act sets out how various issues must be undertaken with respect to the continuing welfare of and provision for children, helping make sure that they do not experience any undue negative effects following the separation or divorce of their parents.
The two most important aspects of ensuring a child’s welfare is where they will live and how they will be financially supported. Other important matters to consider include the possibility of appointing a guardian, and what to do in the event of a child being taken abroad on holiday.
In law, parental responsibility is defined as all the rights, duties, powers, responsibility and authority which by law a parent of a child has in relation to the child and the child’s property.
If you have parental responsibility, you have a right to make decisions relating to all aspects of a child’s life, from how a child is educated and whether he or she receives medical treatment, to the name of the child.
At the moment of birth, a mother automatically has parental responsibility. If the father and mother were married at the time of the child’s birth, the father will also have parental responsibility. A father who was not married to the mother at the time of the child’s birth after December 2003 has parental responsibility if he is named on the birth certificate. Otherwise, he does not have parental responsibility and would need to obtain it by agreement with the mother, or else by order of the court.
It is important to recognise that having parental responsibility is a separate issue from other decisions such as where a child may live.
It is important that you resolve the issue of child maintenance payments as soon as possible. Child maintenance should be a regular payment of an agreed sum which is intended to contribute towards the child’s general living costs.
There are three ways you can agree on child maintenance payments:
It is not always the case that separating or divorcing partners cannot agree on the way their children will be provided for. Often the separation is amicable, and there is swift and straightforward agreement on an appropriate sum, and the way in which it will be paid.
In this case, a family-based agreement may be appropriate. However, it is very important to realise that these arrangements are not legally binding. If the partner responsible for making child maintenance payments fails to meet the agreed terms, the courts cannot force them to pay.
A court agreement only applies in the event of a divorce or dissolution. In many respects it is very similar to a family-based agreement, except that the court records and approves the agreement, and it thus becomes legally binding.
The agreement lasts initially for a year. After that period, if either parent wishes to amend the agreement for some reason against the wishes of the other parent, they may apply to the Child Maintenance Service (CMS).
The CMS replaced the old Child Support Agency in December 2012 and deals with all new cases. It plays a very important role in helping ensure that both parents provide appropriate financial support for the child.
The CMS can:
The CMS uses six key steps to calculate an appropriate amount of child maintenance payments.
Step 1: Look at the paying parent’s income, through HMRC documentation.
Step 2: Look at other aspects affecting income, such as pension payments and other dependants.
Step 3: Apply the appropriate payment rate of a scale of five rates, based on gross weekly income ranging from £7 per week to £800+ (those with a gross weekly income of less than £7 will not be eligible to pay).
Step 4: Take into account the number of children for whom the parent is paying maintenance.
Step 5: Calculate the correct child maintenance payment.
Step 6: Take into account the frequency/regularity of the child staying overnight with the paying parent, and make deduction accordingly.
There are many different ways in which the court plays an important role in resolving all kinds of issues relating to the day-to-day life and welfare of a child following divorce or separation.
Most of the disputes which will lead a parent to seek a court order are considered private law proceedings. Examples of private law proceedings include seeking a child arrangement order (formally known as residence or contact orders), or addressing specific issues in the child’s life.
The various kinds of order that a court can make are known as Section 8 orders, deriving from Section 8 of the Children’s Act 1989. Parents have a right to make applications for Section 8 orders to settle disputes regarding a child, and other family members may also apply.
Once a Section 8 order has been made, it generally lasts until the child reaches the age of 16.
The child is always central to any decision made when considering a Section 8 order. The courts must have regard to what is known as the ‘welfare checklist’, which includes:
Child arrangement orders, which replaced contact and residence orders in 2014, are court orders regulating the living and contact arrangements for a child whose parents have separated.
With more modern family patterns in which both parents often work, shared residence is increasingly popular. A shared residence arrangement – agreed by the courts – provides for the child to spend a certain amount of time with each parent. Very often the time spent with each parent is evenly allocated, helping to reinforce the crucial role each parent plays in the child’s life.
There will be lots of different factors which will need to be considered when making a child arrangement order. These can be simple issues such as geographical location, but may need to include other sensitive matters, such as a child’s relationship with a non-resident parent.
The law recognises that there are other very important adults in a child’s life besides parents, and child arrangement orders can be made for other close relations such as grandparents.
There may be occasions where one parent has serious concerns that the other parent may use his or her parental rights and responsibilities in an inappropriate or even illegal manner. One of the most common concerns is that a parent may attempt to take a child overseas.
A prohibited steps order can be made by the courts to prevent an individual (usually a parent, but potentially another family member) from making inappropriate decisions.
Family life is complex, and it is almost impossible to draw up child arrangement orders that provide for every conceivable eventuality that might arise in the life of a child.
A specific issue order (SIO) enables parents to settle disputes regarding key decisions made by those who have parental rights and responsibilities for a child. Decisions made regarding a child’s education are extremely important, and can be fraught if parents disagree on the type of schooling a child should receive. Similarly, disputes over medical treatment can be very distressing, and have serious implications for the welfare of a child.
Under these circumstances, the courts are able to make an SIO to resolve such disputes to the benefit of the child’s welfare.
Sometimes, important disputes which may need a Section 8 order from the courts can be resolved first by using mediation.
Before making an application to the courts, you would usually be asked to attend a Mediation Information and Assessment Meeting (MIAM). These meetings will assess whether your dispute can be resolved by mediation rather than a court order.
If mediation does not succeed in resolving the dispute, the mediator will confirm that the MIAM has taken place, has not been successful, and that an application to the courts should go ahead.
Appointing a guardian for a child is not essential, but it can help bring peace of mind when there has been divorce or separation. The 1989 Children’s Act sets out the role of a guardian, who would take on parental rights and responsibilities for the child if his or her parents die.
If you wish to appoint a guardian, you should do so in writing. A will is an appropriate place to formally state who you wish your child’s guardian to be, but you can draft an additional and separate document.
If both parents of the child die, and there is no one living who has parental rights for the child, the courts may appoint a guardian. The courts can also help solve disputes about who a guardian should be, and where necessary terminate a guardianship agreement.
If you wish to take your child abroad, there are various issues to consider, particularly when taking a child overseas without appropriate consent, even for a short period of time, may well be considered child abduction, which is a criminal action that can have very serious long-term consequences.
A parent who provides the main residence for a child under a child arrangement order may take the child abroad for up to one month without gaining specific permission from others who have parental rights and responsibilities for the child. That being said, it would be best to obtain the consent of those with parental rights and responsibilities, to maintain amicable and pleasant relationships between all those who have the child’s interests in mind.
If there is no child arrangement order in place, taking a child overseas will require the consent of everyone who has parental responsibilities for the child. If an agreement cannot be reached, the child cannot be taken overseas unless there is a court order (generally an SIO).
Most family law cases involving children will be private law proceedings under Section 8 of the Children’s Act. However, there will be some circumstances where the local authorities play a part, and the proceedings become public law.
There are various different situations when, in the best interests of a child, public law proceedings are the most appropriate step.
These might include:
If a child for whom you have parental rights or responsibilities is the subject of a public law order for these or any other reasons, it is very important that you secure expert legal advice as soon as possible, and that all actions are undertaken with the welfare of the child foremost.
You cannot receive legal aid for the majority of family law cases, covering day-to-day issues such as child arrangements orders.
However, there are some circumstances in which you may be entitled to legal aid, for example, if you have been the victim of domestic abuse. Other very serious family law issues can be funded by legal aid, including where there is a legitimate fear that a child may be taken overseas, or where the child needs protection from abuse.
Importantly, you are entitled to legal aid if there are public law proceedings to take your child into local authority care.
If you do not qualify for legal aid but cannot afford to fund legal action, the Citizens Advice Bureau may be able to advise on sources of help and support.
Nothing in this guide is intended to constitute legal advice and you are strongly advised to seek independent advice on matters that affect you.
If you need to find one of the best and most affordable family law solicitors in England & Wales for you, we have produced a series of local family law advice guides covering cities such as Liverpool, Cardiff (Wales) with more to follow.
