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Disputes between Parents

Parents’ separation or divorce, can have an emotional impact on children of all ages. When there are disputes between parents on issues relating to their children many parents will use less contentious routes such as mediation or collaborative law rather than going to court.

In cases where it is necessary to involve the court, the approach taken is governed by the principle that the child’s interests are paramount. The welfare checklist which provides that the following factors must be taken into account:

  • The ascertainable wishes and feelings of the child concerned considered in the light of his/her age and understanding
  • His/her physical, emotional, and educational needs.
  • The likely effect on him/her of any change in his/her circumstances.
  • His/her age, sex, background, and any characteristics of his/hers which the court considers relevant.
  • Any harm which he/she has suffered or is at risk of suffering.
  • How capable each of his/her parents or any other person in relation to whom the court considers the question to be relevant is in meeting his/her needs.
  • The range of powers available to the court under the Children Act in the proceedings in question.

A court will only make an order if it is better for the child than to make no order at all.

A court will ensure that decisions are made without undue delay. Parents are always encouraged to reach an agreement provided that they are safe for the children. In most cases, agreements are better than court imposed settlements and are more likely to stand the test of time.

Take a look at this short video that provide top tips on minimising the impact of conflict on children…

We Need To Talk: Top tips to keep kids’ best interests first during divorce or separation from Resolution on Vimeo

What Happens Next?

Fisher Jones Greenwood can help you with mediation, collaborative law, or negotiate arrangements for your children on your behalf. However, sometimes seeking a court order is the only available solution for parents and our family law specialists have many years experience in obtaining court orders in relation to children.

Our individual pages explain these orders in more detail. If you need advice on mediation, collaborative law, or a court order, or if you are in dispute and do not know what to do about it please contact one of our Family Law Specialists – call 01206 835320 or email [email protected].

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Family Law Specialists

Parental Responsibility

Parental responsibility is the most important concept when looking at making arrangements for children.

Parental responsibility includes all the rights, duties, and responsibilities which a parent has in relation to a child. This will include such responsibilities as decisions about which school the child should attend, religious upbringing, or medical treatment the child should receive.

Any person with parental responsibility may make a decision about the child, but if there is more than one person with parental responsibility and they cannot agree, then a court may need to decide for them.

Who has parental responsibility?

Mothers
A mother always has parental responsibility for her child and cannot lose it, unless the child is adopted.

Fathers
A father who is married to the mother of the child, will automatically have parental responsibility for that child.

An unmarried father of any child whose birth was registered before 1 December 2003, will not automatically have parental responsibility and will need to acquire it by one of the methods set out below.

An unmarried father who is named on a birth certificate of a child whose birth was registered after 1st December 2003, will have parental responsibility. This is not retrospective.

How can I acquire parental responsibility?

A father who does not have parental responsibility can obtain it by

  1. Parental responsibility agreement. A simple form can be completed, which then has to be signed by both the father and the mother in the presence of a magistrate or court official. Proof of identity is required. The form is then lodged with the court.
  2. By the court making a child arrangements order specifying the child is to live with their father.
  3. By the court making a parental responsibility order.

As with all decisions made about children in court, for the court to grant a parental responsibility order it must be satisfied that it is in the children’s best interests. The court will look at:

  • The commitment a father has shown to the child
  • The strength of attachment between the father and child
  • The reason for the application

Generally, a father who shows sufficient commitment to his child will usually be granted a parental responsibility order.

Step-parents and civil partners can also acquire parental responsibility through a parental responsibility agreement, or the court making a child arrangements order specifying that the child is to live with them, or a parental responsibility order.

Grandparents or other adults with a child arrangements order specifying the child is to live with them, or a special guardianship order will automatically have parental responsibility. Parental responsibility granted under a special guardianship order overrides that of the natural parents.

How can parental responsibility be lost?

If a child is adopted then the adoptive parents will have parental responsibility and the natural parents will lose parental responsibility.

Parental responsibility which has been granted by a court order will come to an end when the order comes to an end.

The court has power to take away parental responsibility acquired under parental responsibility agreements in rare cases where the court decides it is appropriate.

If you have any questions about parental responsibility, please contact our Family Law Specialists – call 01206 835320 or email [email protected].

Taking Children Abroad

Holidays

Taking children abroad on holiday is part of normal family life and if everyone with parental responsibility agrees, no permission of the court is needed. In most cases it would not be difficult to persuade a court that a holiday abroad is in the best interests of a child. However, if there are genuine concerns about the welfare of a child or that a child may not be returned (child abduction) then urgent action may be necessary.

A person with a child arrangements order specifying that the relevant child lives with them, may normally take the child referred to out of the UK for periods of less than one month without consent of another person or a court order.

Where there is a child arrangements order, specifying who the child lives with in force, no person can remove the child from the UK without written consent from all those with parental responsibility or permission from the court.

It is very important to check the requirements of all countries being visited before leaving the UK as written consent may be required.

If agreement cannot be reached about arrangements for a holiday abroad, then a court can resolve it by using a child arrangements order, a specific issue order, or a prohibited steps order.

Relocation

Taking a child abroad for longer periods of time, for example, a temporary posting or permanently, can be one of the most difficult issues that separated parents may have to face. As with all cases concerning children, the most important consideration is the welfare of the child. Mediation may well assist the parties in reaching agreement to meet the needs of the children for them to maintain a good relationship with both parents.

As UK courts may not have jurisdiction over children living outside the UK, it may be necessary for the arrangements to be incorporated in a court order made in the UK and also a ‘mirror order’ made by a court in the jurisdiction where a child will be living.

If agreement is not possible and an application to a court is necessary, then it is important to obtain specialist legal advice at as early stage as possible in order to ensure that your application has the best possible prospects of success.

If you have any questions about taking a child abroad, please contact our Family Law Specialists for specific advice – call 01206 835320 or email [email protected].

Mediation

Mediation is a process by which a couple can negotiate on issues which they have been unable to agree with a trained neutral third party. It is a voluntary process, but one which is effective in resolving disputes that may otherwise end up in costly court proceedings. In mediation, the parties decide the outcome rather than leaving decisions to a judge.

Family mediation can help resolve issues relating to the children or to finances on the breakdown of a relationship.

While mediation is not counselling, which can assist with the reconciliation of couples, trained family mediator solicitors assist with the breakdown of relationships and the issues that arise from that.

The mediator will first have to consider whether mediation is suitable in the circumstances and whether mediation will be able to help the parties reach an agreement. The mediator will speak to the parties individually and ask them the same questions to ensure they understand how the process works. This meeting is called a Mediation Information Assessment Meeting (MIAM).

Attendance at a MIAM is required before a court application is made in relation to the finances or children matters.

If you are going through mediation with another mediator we can advise you about the process and answer any questions that you might have about financial disclosure or settlement discussions.  If an agreement is reached, we can advise you on the terms required which makes the settlement legally binding in the court.

Legal Aid called ‘Help With Mediation’ is available for those that qualify financially for it. Contact one of our Family Law Specialists to find out if you are eligible – call 01206 835320 or email [email protected].

Child Abduction

Child Abduction in the UK

If a child is removed from, or not returned to, a parent with whom they have been living, urgent action is required. A court has power to make an emergency child arrangements order or prohibited steps order.

It is also possible to apply to the court for an order which directs any person who may have information about the child’s whereabouts to disclose it to the court. This could be used to force relatives or friends of the abductor to disclose addresses or likely destinations.

An order authorising a search for, taking charge of, and taking delivery of, a child can be made which authorises court officials and the police to locate and protect a child.

We have a specialist team of solicitors based at offices close to courts who are experienced in making emergency applications for the protection of children.

Legal Aid may be available.

If you believe that a child is about to be abducted abroad

There is action which can be taken to assist in the prevention of a threatened abduction including port alerts, and orders preventing issue of passports and requiring the surrender of passports.

Action needs to be taken swiftly, including applying for an emergency child arrangements order or prohibited steps order.

Legal Aid may be available.

Recovering a child abducted abroad

If a child has been abducted overseas, then what action can be taken depends on the country where the child has been taken.  The first step is to contact the International Child Abduction and Contact Unit which is the body responsible for administering the Hague Convention in England.  Where it is possible to assist, the ICACU will normally contact the Central Authority in the country to which the child has been taken and request that action be taken to return the child to the UK.  Once the child has been returned there may need to be action in the UK to determine who the child will live with and whether they should be taken abroad.

The contact details for the International Child Abduction and Contact Unit are:
Tel: 020 3681 2608 (Monday – Friday 10am – 4pm) Emergency out of hours 0116 2556 234
Fax: 020 3681 2763 e-mail: [email protected]

See Reunite’s website for further information and support in relation to child abduction.

Legal Aid may be available.

If you have come to the UK and have been accused of abducting a child

The courts in the UK will usually order the return of children who have been abducted to the country where they normally reside so that issues as to where the children should live and who they live with can be dealt with there.  It is very important that you obtain specialist legal advice on the facts of your case as soon as possible.

Special Guardianship Orders

A special guardianship order appoints one or more individuals to be the ‘special guardian(s)’ of a child or young person. This gives legal recognition to a non-parent caring for a child or young person on a day to day basis and who wishes to care for the child/young person long-term whilst still maintaining the child’s links with their birth parents. An order of this kind may be made within ‘private law proceedings’ (where there is no involvement of the local authority) or within care or adoption proceedings.

What is the effect of a special guardianship order on parental responsibility?

A person who has a special guardianship order will automatically have parental responsibility for the child. The parents will also retain their parental responsibility, maintaining their legal relationship with the child. This is unlike adoption where the legal relationship between the parents and child is permanently severed, the natural birth parents are no longer considered parents, and parental responsibility is extinguished.

A person with a special guardianship order can exercise their parental responsibility to the exclusion of any other persons who have parental responsibility for the child (except another special guardian). Special guardians, therefore, have overriding parental responsibility, which means they can make important decisions about a child’s upbringing without consulting the parents.

What are the limitation on a special guardian’s parental responsibility?

  1. A special guardian cannot consent to changing a child’s surname
  2. A special guardian cannot remove a child from the UK for longer than 3 months
  3. There are certain legal restrictions (e.g. obtaining consent for a child to be sterilised)

A special guardian cannot do any of the above without either the written consent of every person who has parental responsibility for the child, or with permission from the court, unless these matters had been specifically dealt with when the court was making the special guardianship order.

Within the duration of a special guardianship order, a parent would have to obtain permission from the court if he or she wished to apply for a child arrangements order to decide who a child is to live with. However, a parent is able to make an application for a child arrangements order to decide contact arrangements, prohibited steps order, or a specific issue order without first obtaining permission from the court. A special guardian cannot override a parent’s refusal to consent to the adoption of the child.

Who can apply for a special guardianship order?

A special guardian must be aged 18 years or over and must not be a parent of the child in question.

The following people can apply for a special guardianship order without obtaining the permission from the court as long as they have given 3 months notice to the relevant local authority:

  1. A guardian of the child;
  2. Any individual in whose favour a child arrangements order is made, specifying the relevant child is to live with them in force;
  3. A person with whom the child has lived for at least three years within the last five years, ending not more than three months ago;
  4. A person who has a child arrangements order specifying the relevant child is to live with them, or a person who has permission of each person who has a child arrangements order;
  5. A person with the consent of the local authority, if the child is in care of the local authority;
  6. A local authority foster carer with whom the child has lived for a period of one year directly before the special guardianship order application;
  7. Any person (if there is no child arrangements order or care order in force) who has the consent of each person who has parental responsibility for the child;
  8. A relative with whom the child has lived for a period of at least one year directly before the application for the special guardianship order.

A person who does not fall into one of the above categories will have to apply to the court for permission before applying for a special guardianship order.

The court does not give preference to a special guardianship order over an adoption order.  Each case will be looked at individually and will be decided by the court looking at what is in a child’s best interests, with the court’s paramount consideration being the welfare of the child.

What is the procedure to apply for a special guardianship order?

An applicant must first give the local authority three months’ notice in writing of the intended application. If permission is required from the court, this should be obtained first.

Once the local authority has been given notice it will then produce a special guardianship report with all the necessary information for the court, providing the court with details of:

  • The child and his/her wishes
  • The child’s birth family
  • The contact arrangements proposed
  • The prospect of the special guardian
  • The local authority’s recommendations as to whether or not a special guardianship order should be made

The report will be considered by the court when it decides whether a special guardianship order should be made.  The court will address the question of the child’s welfare throughout the child’s life and have regard to the welfare checklist.  If there are any existing orders relating to children these will be considered at the same time as the application for the special guardianship order.  The court may well make a child arrangements order to maintain contact between the child and birth parents.

A special guardianship order lasts until the child reaches 18 years old, unless it is revoked, varied or discharged.

It is possible for specific people to apply to the court to vary or discharge a special guardianship order, either with or without permission from the court.

A special guardianship order automatically discharges any existing care order in respect of a child.

Can a special guardian receive financial assistance?

A special guardian can receive child benefit for the child and can apply for other relevant benefits.

A special guardian can also request their local authority to undertake an assessment in order to receive special guardianship support services.  As well as financial provision, this may also include counselling, advice and assistance, access to support groups, mediation, and therapy.

If you have any further questions regarding special guardianship orders, please contact our experienced Family Law Specialists – call 01206 835320 or email [email protected].

Grandparents

Grandparents usually play an important role in the lives of their grandchildren and, naturally, the separation of their grandchildren’s parents is often a cause for anxiety. If things are not working within the family, perhaps because parents cannot cope with their children, and social workers become involved, they will often look for another member of the family to take care of the children before turning to foster carers.

Do ‘grandparent’s rights’ exist?

Not specifically, because the Children Act focuses on the needs of the child. However, it is usually the case that it is in the best interests of children to continue to enjoy a strong relationship with their grandparents, and many parents welcome the assistance that grandparents can give in helping them bring up their children. Often the children’s time with their grandparents takes place as part of the children’s time with their parents.

What action can a grandparent take if they are not seeing their grandchildren?

Any person concerned about a child, can apply to a court for an order in relation to the child’s welfare. A parent can apply as of right, but anyone else has to complete a preliminary step; applying for permission from the court to make an application. A person does not have to apply for permission from the court where:

  • The child has lived with them for 3 years during the last 5 years, and within the preceding 3 months
  • Those with parental responsibility give their consent
  • There is already permission given (special requirements apply to some foster carers)

We would always recommend that mediation is considered before an application is made to the court. In cases where mediation is not practical or has failed, it is important to obtain practical legal advice as to how a court is likely to view the application. As with any case involving children, it is essential that this is done at an early stage. Arrangements for children can become established in a short period of time and, as can be seen above, time limits can apply to applications to the court.

What about long term care of grandchildren?

There are several options if parents are not able to look after their children and, again, early legal advice as to the best course of action is important, particularly if social workers are involved.

Applying for a child arrangements order may be the best first step. Sometimes, grandparents will adopt their grandchildren but in other cases a special guardianship order is an alternative which provides long term security for children who cannot live with their parents. There are different considerations which apply to each of these options and the approval of the court, and sometimes the local authority, maybe required.

If there are care proceedings, friends or relatives care, or ‘kinship care’ can be organised through a private arrangement or formalised in a court order. In this situation, the local authority retains parental responsibility for the child and places the child with the friend or relative who is a foster carer. The local authority will be involved and any prospective kinship carer assessed.

If you have any questions about your legal rights as a grandparent, please contact our Family Law Specialists – call 01206 835320 or email [email protected].

Step Parents

Living with stepchildren is increasingly common. Step-parents, and this term includes civil partners having registered a civil partnership with a child’s parent, are likely to develop close relationships with children who may, or may not, be in close contact with a non-resident birth parent. The law has always placed considerable importance on the rights and responsibilities of birth parents, but to what extent can a step-parent acquire rights and responsibilities for children with whom they have a relationship?

Parental responsibility is the most important concept in the relationship between parents and children but, although step-parents are frequently living with and caring for the children of their spouse or civil partner, a step-parent does not acquire parental responsibility for a child simply by marrying or entering into a civil partnership with the parent of that child. If a child requires medical treatment or is involved with the authorities, for example the police wish to question the child, they will often need to deal with a person with parental responsibility.

How can a step-parent acquire parental responsibility?

  1. Through a parental responsibility agreement
    A parental responsibility agreement is a formal document which is signed by a birth parent or both parents, if they both have parental responsibility, and registered with the court. An unmarried partner is not a step-parent of the children of their partner and cannot acquire parental responsibility for their partner’s children using this route.
  2. By the court making a child arrangements order
    If the court makes an order that a child reside with a step-parent, either on their own or jointly with another person, probably a birth parent of the child, then the step-parent will acquire parental responsibility for that child.
  3. By the court making a parental responsibility order
    As in all cases concerning children, the court would base its decision on what is in the best interests of the child.
  4. By adoption
    By adopting a child, a step-parent acquires parental responsibility for that child.
  5. By being appointed guardian
    If a person is appointed as guardian in a will by a person with parental responsibility for a child, the guardian will acquire parental responsibility but only on the death of all those with parental responsibility.

What about other people with parental responsibility?

The acquisition of parental responsibility by a step-parent does not affect the parental responsibility of the other people with parental responsibility, unless an adoption order is made. Any person with parental responsibility may make a decision about the child, but if there is more than one person with parental responsibility and they cannot agree, then a court may need to decide for them.

If you have any questions about the rights of step-parents, please contact our Family Law Specialists – call 01206 835320 or email [email protected].

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