This is perhaps the single most important concept in the law relating to children.
Parental Responsibility is a legal term used to describe the responsibility, rights and legal authority a person has in respect of a child. Parental responsibility concerns the issues which arise when bringing up a child and someone with parental responsibility is entitled to participate, for example
- in naming the child;
- in deciding the child’s religion;
- in taking decisions over the child’s schooling and education.
Someone with parental responsibility is entitled
- to be informed of changes in the child’s welfare;
- to receive school reports and to attend school parents evenings;
- to be notified of and included in any court proceedings relating to the child.
Someone with parental responsibility is entitled to make decisions about the child; but, where two people have parental responsibility, they are each free to make conflicting decisions! This is the legal reason why a separating couple need to maintain a good working relationship with one another, wherever possible taking decisions about their children by agreement.
The alternative is to ask the Court to decide issues. What parental responsibility does not give any one person is the right to have control over the child’s day to day life. If matters result in court proceedings, the Court will look at what is in the best interests of the child.
The following have parental responsibility
- the mother of the child;
- the father of the child providing he is or was married to the child’s mother;
- the father of the child, where the child was born after 1 December 2003 and where he is named on the child’s birth certificate;
- anyone whos is given parental responsibility under a Parental Responsibility Agreement or Parental Responsibility Order.
Someone who does not have parental responsibility for a child may acquire it
- by signing a formal Parental Responsibility Agreement with the other people who have parental responsibility, usually the child’s mother; or
- by a Parental Responsibility Order.
If a father seeks a Court Order for parental responsibility the test the Court applies can be summarised to include
- does he have a sufficient attachment to the child?
- does he have a sufficient commitment to the child?
- is he applying for the right motives?
A ‘right motive’ might include that he wishes to see his role in the child’s life officially recognised. A ‘wrong motive’ would be if the father was likely to use parental responsibility as a ‘stick to beat the mother with’.
When a divorce petition is filed and there are children under 16, or under 18 and in education or training, the Applicant must also file with the court a document setting out the proposed Statement of Arrangements for Children to which the Respondent can then reply. A copy of this form can be found on the Court Service website www.hmcourts-service.gov.uk. It is Form D8A.
The Judge makes a Declaration of Satisfaction with these arrangements when he gives his Certificate for the Decree Nisi. In most cases the Court makes no other orders about the children.
In private law proceedings (between individuals, rather than public proceedings where a child may be taken into Care) the Court's main powers are to make
- a Residence Order: to settle where a child has his/her main home or whether the child is to have two main homes under a shared residence order;
- a Contact Order: to settle the arrangements for the children to see the absent parent or at least to keep in indirect contact with them;
- a Specific Issue Order: to settle a dispute over a particular issue such as education religion or health; and
- a Prohibited Steps Order: to stop a parent from doing something.
The new Rules provide an 'overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved'.
The main principles behind the law can be summarised as follows
- the child’s welfare shall be the Court’s ‘paramount consideration’;
- delay is likely to prejudice the welfare of the child;
- the Court shall not make an Order unless it considers it would be better for the child than making no Order.
The factors the Court must have regard to are set out in Section 1(3) of the Children Act 1989. This is a checklist which states:
… a court shall have regard in particular to:
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.
Courts do not leave it to children to decide for themselves but their wishes do increasingly count, depending on their level of maturity and understanding.
A sole Residence Order is usually expressed as ‘the child shall live with mother’ or ‘the child shall live with father’. The concept is that the child has one main home with one or other of the parents.
A shared Residence Order is usually expressed as ‘the child shall live with mother at specified times and shall live with father at specified times’. The concept is that the child has two main homes. It does not mean that the child will necessarily spend the same amount of time in each household. Over recent years there has been a shift in the reported cases that increasingly favours the making of shared Residence Orders. It is often thought to be in the best interests of the child to recognise the equal importance of both parents.
Sometimes people other than the child’s natural parents will wish to make an application for a Residence Order; they may do so if the Court gives them permission.
An application for a Residence Order clearly leads to a very important case; it is essential to get advice at any early stage. Sometimes that advice will be to continue to ‘build the case’ before making the application itself.
What some couples agree is an arrangement by which the children do spend about half their time in each household: usually half a week at a time or on a ‘week on / week off’ basis. The best term for this is ‘shared care’ and because it usually pre-supposes a good level of co-operation it is usually not reflected as a shared Residence Order but is simply an agreed arrangement.
The Court’s starting point is likely to be that it is best for a child
- to know both parents;
- to develop and maintain a good relationship with both of them, if possible
- to get to know the parent with whom they do not live ‘as they are’ which means getting to know people who are significant to that parent such as a new partner and members of their wider family (Courts say such links should develop at a pace with which the child can cope)
The Court can order
- direct contact – seeing the child face to face:
- indirect contact – keeping in touch by phone calls / internet / cards and presents;
- visiting contact – seeing the child during the day;
- staying or overnight contact; and
- holiday contact.
Contact may be unsupervised or supervised; there are different forms of supervised contact.
You will find there is a vast amount of advice available to you about your children. We can advise you what contact arrangements seem to work best in our experience.
We think contact generally works best if
- Everyone signs up the idea of being ‘a successfully separated family’: in successfully separated families each parent makes sure contact works from the child’s point of view and tries to maintain a good working relationship with the other.
- No one uses the children to settle old scores or as a way of expressing bitterness.
- There are clear and detailed arrangements that cover
- term time weekdays
- term time weekends
- half term holidays and in-service days
- Christmas and Easter holidays
- summer holidays
- other annual events such as Mothers Day and Fathers Day
- indirect contact:such as phone calls.
- Arrangements progress as the child matures.
- Mothers ‘let go’ of their children and trust father to deal sensibly with any distress the child shows: some level of distress may be perfectly normal and is likely to be short-lived.
- Both parents are absolutely punctual, polite and respectful at all times.
- Both parents speak well of the other in front of the children and, regardless of whatever they really feel, they say nothing negative about the other in earshot of the child..
- The parent with whom the child lives lets the child know they genuinely wish them to enjoy their contact time and to come home and talk about it.
- The parents support each other in their new roles which are new to each of them and make allowances and show patience when they think the other is getting it wrong.
- Both parents maintain a close relationship with their child's school; but do you attend parents evenings together or not?
Ideally, parents should show a measure of flexibility when unforeseen circumstances (for example, a traffic problem or ill health) or a one-off event (for example, a family celebration) mean one parent needs to ask the other to change the established contact arrangement. Agreeing to this, even at short notice, is in the spirit of ‘give and take’ and of course ‘works both ways’. What is usually best avoided is where flexibility becomes the norm and the underlying arrangement becomes lost.
When contact arrangements break down it is often because the handover goes wrong. We repeat our advice: both parents need to be absolutely punctual, polite and respectful at all times. If you wish to discuss maintenance or some other issue, it is far better not to do it at the handover; perhaps have a weekly phone call with the other parent - just about the children.
Sometimes the principle 'less is more' can apply: does a child who lives with his mother need a daily phone call with his father. Some might but usually two or three phone calls a week might be a more positive and newsworthy experience for father and the child.
Children usually find it easier if their are some common groundrules that apply in both households, for example, in relation to bed-times. Parents find things go better if they are clear with each other on topics such as - who wil organise routine medical and dental appointments, what clothes and toys are to pass between the two homes, who is to organise / pay for out of school activities and clubs, what can be agreed about pocket money and presents, how to deal with new partners?
It is rarely a good idea for parents to try and hold a conversation about their children as part of a handover. Far better to have a regular weekly or monthly telephone discussion when the children are in bed.Some couples find it helpful to have an annual meeting to discuss the children in August so as to review arrangements and implement any agreed changes at the start of the new the school year.
We like to help families make a success of contact – it can be a WIN WIN WIN situation for mother, father and, most of all, the child.
The new Rules create a general principle that before anyone can make an application for a Residence or Contact order they must first have attended a Mediation Information and Assessment Meeting (MIAM) to consider if mediation would be a good process for them to try and resolve the issues over their children. This does not mean they have to undertake mediation, but they usually have to have at least considered it (there are exceptions in cases where the situation is an urgent one or where there is domestic violence or there would be along delay before a MIAM can be held).
It remains to be seen how MIAMs will be organised locally; it seems likely that unless someone is eligible for Legal Aid they will have to pay a fee of about £100. For our views on mediation please follow the link to Mediation.
A very simple outline is
- The Applicant files and serves the application on Form C100 plus any relevant supplements: a Court fee £200 is payable.
- The Court fixes a First Hearing Dispute Resolution Appointment (FHDRA) to take place within the next 4 weeks
- At the FHDRA the Court will consider
- to what extent the parties 'can safely resolve some or all of the issues with the assistance of the Cafcass Officer and any available mediator'
- 'risk identification followed by active case management'
- ordering them to file statements of their evidence
- ordering a Cafcass Officer to file a report
- making some interim arrangements, for example, for contact
- settling the timescale for the rest of the case.
- The Cafcass Officer will interview the parties and make any other enquiries and will file a Report; this may take about 3 months.
- The Cafcass Officer may see the children to find out their ‘ascertainable wishes and feelings’ – see the checklist above.
- About 2 weeks later there will be a final Directions Hearing (usually in front of the Judge who will hear the final hearing) to review the case at this stage in the hope of promoting an agreed outcome,
- A further 2 weeks or so later the Final Hearing itself, if there is no agreement.
Cafcass stands for Child and Family Court Advisory and Support Service. Its website is at www.Cafcass.gov.uk. It is an under-resourced and over-stretched organisation which over recent months has sometimes struggled to file reports on time. To combat this situation there are various local initiatives in place designed to dispose of cases more quickly where possible; this has resulted in some local practices and departures from the basic outline set out here.
Where one parent wishes to take a child abroad for a short holiday the basic rule is that the parent must obtain the prior consent of the other parent or a Court Order (a Specific Issue Order). It is wise to get the consent in writing. Courts tend to think that foreign holidays are good for children. A parent who has a Residence Order may take a child abroad for 1 month without the other parent's written consent.
We have a good deal of experience in dealing with cases where one parent wishes to take a child to live with them abroad on a permanent basis. We recently took a case successfully to the Court of Appeal where it was reported in the Law Reports. These cases need very careful preparation and advice should be sought at as early a stage as possible.
For many years courts have been able to make contact orders in favour of grandparents in their own right. It is sometimes necessary to assess whether this is the best way forward in a particular case or whether the family would do better to put all its effort into promoting the parent’s contact in the expectation that this will indirectly lead to the grandparents seeing the children.
We do not act in Adoptions or Care proceedings.
(1) in divorce cases
When parents divorce the Court shall ‘have as its first consideration the welfare of any minor child of the family’. The parents may well have agreed how much will be paid as child maintenance or at least what contribution one will make towards the costs of the household of the other. If this cannot be agreed the parent with whom the children live may apply to the CSA. See our notes on Maintenance. If an overall financial settlement is agreed an order will commonly be made which will record the agreed arrangement for child maintenance as a term of the Order.
The Court may make a school fees order, whether this is agreed or not, and in rare circumstances it may make a top-up maintenance Order.
It is very rare in divorce proceedings for separate capital claims to be pursued on behalf of a child. Usually, the child’s position is considered as forming a central part of the financial claims pursued by the parent with whom the child lives.
(2) where the parents are unmarried
Where parents are unmarried they will still be able to deal with maintenance by agreement or by an application to the CSA. Additionally, however, the parent with whom the child lives may apply under Schedule 1 of the Children Act 1989 for financial provision.
The Court can order maintenance payments, a lump sum payment or an order by which property is ‘settled’ on the resident parent for the benefit of the child until the child grows up.
The Court may order a non-resident parent to pay top-up maintenance but, in practice, these applications are rare and tend only to be made in ‘big money’ cases. The Court may make a school fees order, as in divorce cases.
The Court may make an order that the parent pays a lump sum for the child but, again, this provision is rarely used and tends only to apply in ‘big money’ cases.
What is far more common is for the Court to make an order by which it ‘settles’ property on the parent with whom the child is to live. Typically, this provision applies where that parent does not have sufficient resources to purchase a home for them self and the child(ren) and needs the other parent to make additional funds available for this purpose.
The funds that are ordered to be made available in this way are paid as a loan and not as an outright transfer either to the parent or the child(ren). As such, the monies paid are commonly secured by a Charge against the property that is bought so that at some point in the future they will revert to the parent who provided them. This would typically happen when the youngest child reaches the age of 18 or leaves education. A difficult topic is whether the monies paid by the father should revert immediately if the mother forms a new relationship.
If an application is made to the Court under Schedule 1 of the Children Act, the Courts encourage the use of a procedure similar to that used in divorce cases for financial applications.