THE MARSHALL & GALPIN GUIDE TO CHILDREN
Dealing with the arrangements in relation to children following divorce and separation can be a highly emotional and delicate issue. Sometimes the arrangements for the children do break down. If the problems cannot be overcome, for example by undertaking mediation, an application needs to be made for the Court to determine the arrangements in relation to the children. You may wish to look at the separate guide to mediation. The following are examples of the sort of orders the Court can make:-
Parental Responsibility Order
Parental responsibility is defined in s.3 ( 1) of the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which, by law, a parent of a child has in relation to his/her child and his/her property”.
A mother of a child will automatically have parental responsibility irrespective of her marital status. If the father was married to the mother at the time of the birth of the child he will automatically have parental responsibility. Prior to the 1st December 2003, if the father was not married to the mother at the time of the child’s birth he does not automatically have parental responsibility, but can acquire it by agreement with the mother, by order of the Court or by obtaining a residence order. After the 1st December 2003 an unmarried father present when the birth was registered and named on the birth certificate will have parental responsibility. Guardians, adoptive parents, the local authority and anyone with a residence order in their favour can also acquire parental responsibility.
Contact Order
A contact order requires the person with whom the child is living to allow the child to visit, stay or have some form of contact with the person named in the order. If the parties are unable to agree the arrangements either party may apply to the court for an order to determine the contact arrangements. This is known as an application for a defined contact order and is usually made by the parent who is unhappy about the contact. Where an order for contact has been made either parent can apply for the order to be varied or revised. In limited cases, the Court will not order contact to take place where it is not in the best interest of the child. An application can also be made to enforce a contact order where one parent is refusing to comply with the terms of a contact order.
Residence Order
A residence order determines where a child shall live. A residence order can be made in favour of more than one person and if those people are not living together the order will be for joint shared residence. The granting of a residence order in favor of anyone automatically gives him or her parental responsibility for the child. Residence orders can also be enforced if one party fails to comply with the order. A residence order normally ends upon the child reaching the age of 16 or if the parties live together for a period of more than six months, following the making of an order or a care order is made in respect of the child.
Prohibited Steps Order
A prohibited steps order prevents a parent from doing something. An example of a prohibited steps order is an order preventing one parent from removing the child from the UK without the consent of either the Court or the other parent or person with parental responsibility.
Specific Issue Orders
This order enables the court to determine a specific issue which has arisen, or may arise, in connection with the child, for example, the decision to change a child’s surname, the choice of schools, religious upbringing and medical treatment.
Whenever the Court is asked to make a decision in respect of a child the Judge should always
consider the following matters:
(a) the ascertainable wishes and feelings of the child concerned (in light of his/her age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him/her of any change in his/her circumstances;
(d) his/her age, sex, background and any characteristics of his/her which the court considers relevant;
(e) any harm which he/she has suffered or is at risk of suffering;
(f) how capable each of his/her parents, and any other person in relation to whom the court considers
the question to be relevant, is of meeting his/her needs;
(g) the range of powers available to the court under the Children Act 1989 in the proceedings in question.
For further information, please contact: -
James Stonham (Thame) 01844 219102 email - mailto:james.stonham@marshallgalpin.com
Simon Bassett (Abingdon) 01235 557008 email - mailto:simon.bassett@marshallgalpin.com
Mark Phillips (Oxford) 01865 268630 email - mailto:mark.phillips@marshallgalpin.com
Angela Davies (Thame) 01844 219110 email - mailto:angela.davies@marshallgalpin.com
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