Children Disputes
The interests of children
require sensitive and expert handling. This practice has extensive
experience in acting for parents and children in these difficult
and emotional disputes.
Parental responsibility, residence and contact
Upon the break up of a family, issues
often arise over which parent a child should live with and
how often the other parent should see the child. These disagreements
used to be described as disputes about "custody"
and "access", with one of the parents being given
day to day "care and control" of the child or children.
However, these terms were abolished with the introduction
of the Children Act 1989 and the terms now used are parental
responsibility, residence and contact. The Act introduced
a 'non-intervention' policy so that
Parental Responsibility
Both
parents automatically have parental responsibility for a child
if they were married when the child was born. This means that
each of them is legally recognised as having all the rights
and duties that parents normally have in relation to a child
and that in principal they should both be consulted about major
decisions in relation to the child's upbringing e.g. in relation
to education, medical treatment and any change of the child's
name.
If the child's parents were not married, only the mother automatically has parental responsibility unless the father is named on the child's birth certificate. Otherwise, the parents can at any time sign a Parental Responsibility Agreement giving the father parental responsibility or he can apply to Court for a Parental Responsibility Order. If the mother opposes such an Application then he will have to prove to the court that he has had significant involvement in the child's upbringing so far. If the parents have always lived apart it will be necessary to show that he has had regular contact with the child for a significant amount of time depending upon the child's age.
Residence
If a child's parents cannot agree which
of them the child should live with, either parent can apply
for a Residence Order. The Court will ask an officer from
the Children and Family Court Advisory and Support Service
(CAFCASS) to meet with the child and both parents and to assess
the situation and if agreement cannot be reached to provide
a report. The Court has to make a decision on the basis of
what is in the best interests of the child.
Contact
If a
child's parents cannot agree on how often the parent with whom
the child is not living (the non-resident parent) should see
the child, that parent can apply to the court for a Contact
Order. The Court can make a general order saying that one parent
should have "reasonable contact" with the details
left to be agreed by the parents or it can be much more specific,
setting out the precise times and dates that contact must take
place, including whether and how often the child should stay
overnight with the non-resident parent and how much holiday
time the child should spend with them. This type of Order is
called a Defined Contact Order.
If there are allegations of abuse or violence, either by one parent towards the other or by one of the parents towards the child, the Court may be asked to decide whether that parent should have any contact with the child at all or whether contact should be supervised. A CAFCASS officer and other experts may be asked by the court to provide reports, depending on the complexity of the issues involved and the nature of any allegations made. Again, the court's paramount consideration is what is in the child's best interests.
Specific Issue Orders
In addition to Residence and Contact
Orders, parents may apply under the Children Act 1989 for
the court to decide any specific issue about the child e.g.
whether the child should undergo specific medical treatment
or which school they should attend.
Prohibited Steps Order
The Children Act 1989 also allows
either parent to apply for an order preventing the other parent
from taking a particular course of action in relation to the
child. For example an Order forbidding the other parent from
removing the child from his or her home or school or from
the jurisdiction without the consent of the Court.
Financial Provision for Children
(i) CSA
Unless the parents can agree how much maintenance the parent
with whom the child lives should receive from the other, then
an application must be made to the Child Support Agency ( CSA).
The Courts are no longer involved in child maintenance or its
enforcement. The only exception is where maintenance for children
has been agreed on a voluntary basis and included as a term
of an Order concluding all the Financial Arrangements between
the parties. Such a term is however only binding for one year
and thereafter if the paying part should default or if the receiving
party should wish to seek an increase, then they must apply
to the CSA.
The rate at which Child Support
must now be paid by the 'absent' parent (i.e. the parent with
whom the child does not live is as follows:-
One child 15% of net salary, two children 20% and three children
25%. There are certain exceptions to these rates, in particular
a reduction for the number of nights per week that a child spends
with the absent parent.
More detailed consideration of the Child Support Provisions can be found on the CSA web site (see link).
(ii) Schedule 1, Children Act 1989
Under
the provisions of this schedule, upon separation, the parent
with whom the children will live can apply to the Court for
a lump sum payment and/or a transfer of property from the 'absent'
parent to the 'caring' parent. Applications under this provision
are most appropriate where the parties are former co-habitees
whose family home is in the sole name of the 'absent' parent
who is also the main breadwinner. The principles governing the
Court's discretion under the Children Act are virtually the
same as those applied under the Matrimonial Causes Act 1973
in financial proceedings upon divorce. The overriding principle
of the courts at all times being that 'the children's interests
are paramount.'