Home | Terms & Conditions | Contact | Links | disclaimer | | | | 01983 247221

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.'