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Private Law Children Matters

Private Law Children Matters


In the breakdown of any relationship that involves children, their welfare has to remain paramount.

Our family lawyers are members of Resolution (previously called “The Solicitors Family Law Association”) and as such we do everything we can to discourage conflict over your children which can adversely affect them. We promote a conciliatory and constructive approach in resolving these sensitive family matters.

It may be that at the end of a relationship you can come to amicable arrangements about childcare with your ex-partner. Whether you do that, or you need legal intervention to reach an agreement, it is advisable to draw up formal agreements so that responsibilities are clear and misunderstandings do not lead to further conflict. This section of the website looks at matters relating to children including parental responsibility, residence and contact – now called Child Arrangement Orders.

Child Arrangement Orders

A Child Arrangement Order is an Order of the Court settling the arrangements to be made as to the person with whom a child is to live or spend time with.

There will only be one Child Arrangement Order as to where a child will live at any one time with respect to any one child. That Order, may be quite detailed and may be subject to directions or conditions imposed by the Court. The Order may name more than one person with whom the child should live but who do not themselves live together. A Child Arrangements Order may be made in favour of any person. It is not confined to parents or relatives of the child or to parties to proceedings before the Court.

Where the Court makes a Child Arrangements Order with respect to a child and the father is named in the Order as a person with whom the child is to live, then the Court must also make a Parental Responsibility Order if that father does not already have parental responsibility.

A Child Arrangements Order can also require the person with whom the child is to live, to allow the child to visit or stay with a person named in the Order, or for that person and the child otherwise to spend time with each other.

A Court will only make a Child Arrangements Order if it is of the opinion that to do so would be better for the child than making no Order at all.

It is the right of the child to spend time with a person and not the right of the parent/grandparent etc.

The child has a right, where the parents are separated, to know the non-resident parent and his brothers or sisters. There is a normal assumption that a child will benefit from spending time with a parent, that assumption can always be displaced if the child’s interests indicate otherwise. When considering whether a child should spend time with a parent after a long break, the test is to be applied as whether there are any cogent reasons why the child should be denied the opportunity of spending time with a parent.
When the Court makes a Child Arrangements Order and the father of the child is named in the Order with whom the child is to spend time, the Court must then decide whether it would be appropriate, in view of the provision made in the Order, for him to have parental responsibility for the child. If it decided if it would be appropriate they must make a Parental Responsibility Order.

In cases where there are allegations of serious domestic violence, the Court may wish to have a separate hearing to determine whether the incidents and the level of the alleged violence is such as to affect the court’s decision in making a Child Arrangements Order.

A Child Arrangement Order may last for such time as the Court may direct but not after the child has attained the age of 18 years, unless the Court is satisfied that the circumstances of the case are exceptional. A Child Arrangement Order may be varied or enforced by the Court.

A Child Arrangement Order:

(a) settles the practical arrangements for the accommodation of the child;
(b) vests Parental Responsibility with the person as to who the child should live;
(c) may contain directions or conditions;
(d) allows the Court to make an Order for financial relief;
(e) carries automatic restrictions concerning changing the child’s name and removing the child from the UK;
(f) discharges any pre-existing care order.

A Child Arrangement Order will only have effect until the child has reached the age of 18 years, unless the Court is satisfied that the circumstances of the case are exceptional.

Specific Issue Orders

A Specific Issue Order is one giving Directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.

A Specific Issue Order cannot be made to achieve a result which could be achieved by making a Child Arrangements Order.

Examples of instances when Specific Issue Orders can be used are:

  • to determine where a child should be educated;
  • to determine issues of religion;
  • to determine issues of medical treatment.

A Specific Issue Order may last for such time as the Court may direct but not after the child has attained the age of 16 years, unless it is satisfied that the circumstances of the case are exceptional. A Specific Issue Order may be varied by the Court.

Prohibited Steps Orders

A Prohibited Steps Order is one which provides that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the Order, shall be taken by any person without the leave of the Court. The Order does not prohibit the child from taking steps for himself. Thus, whilst an order may prohibit any person allowing a particular individual to spend time with the child, the child will not breach the Order if he seeks that individual out and contacts him himself.

Examples of possible Prohibited Steps Orders are:

  • an order preventing the removal of the child from the UK (when there is no Child Arrangements Order and consequently no automatic ban on removal);
  • an order preventing the child undergoing certain surgery, or receiving a blood transfusion;
  • an order preventing a change in the child’s schooling;
  • an order that the child’s name should not be changed;
  • an order preventing a parent from exercising his right to see the child’s school record under the Education (School Records) Regulations 1989;
  • an order prohibiting any person from allowing the child to spend time with a named individual;
  • an order restraining a party with parental responsibility from involving the social services or police in investigating the child’s circumstances (if the Court is satisfied that such an involvement would be detrimental . The Order may last for such time as the Court may direct.

Parental Responsibility

Parental Responsibility refers to all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child or his.

Parents of a child who is born within a marriage automatically have Parental Responsibility. Mothers of a child also automatically have parental responsibility. In addition, since the 1st December 2003, unmarried fathers also have parental responsibility if their names appear on the child’s birth certificate. Other persons can apply to the Courts for Parental Responsibility and in addition, Parental Responsibility Agreements can be entered into between a mother and father of a child born outside a marital relationship, and between the child’s natural parents (who have parental responsibility) and a Step Parent. A person with parental responsibility is also able to devolve that parental responsibility, or part of it, to another.

Parental Responsibility embraces many rights in relation to a child and it is not possible to provide an exhaustive list. Examples however are:

  1. Determining the child’s religion
  2. Determining the child’s education
  3. Naming the child
  4. Appointing a guardian for the child
  5. Consenting (or not) to the child’s medical treatment
  6. Consenting to the taking of blood for testing
  7. Consenting (or not) to marriage
  8. Representing the child in legal proceedings
  9. Consenting (or not) to adoption
  10. Lawfully correcting the child
  11. Arranging the child’s emigration
  12. Consenting to the temporary removal of the child from the jurisdiction for holidays or extended stays
  13. Protecting and maintaining the child
  14. Administering the child’s property
  15. Decision as to where the child should live, subject to any Child Arrangement Order
  16. Being able to spend time with the child
  17. Providing for the burial or cremation of the deceased child
  18. Allowing the child to be interviewed
  19. Allowing confidential information relating to the child to be published

It should be emphasised however that whether or not the parent has Parental Responsibility for a child this does not affect any obligations towards the child, such as a statutory duty to maintain him, nor does it affect succession rights. It can be seen therefore that Parental Responsibility does not necessarily attach to one person only. Parental Responsibility can therefore be shared. It can, for example, be given to grandparents with whom a child is living. If that is the situation then the normal course of action will be for, in this example the grandparents, but indeed generally anyone with whom a child is continually living to apply for a Child Arrangements Order. The granting of a Child Arrangements Order automatically confers on those persons with whom the child shall live Parental Responsibility.

The Local Authority can acquire Parental Responsibility if they obtain Supervision or Care Orders in relation to children. In addition, if an Order states where a child should live, it automatically gives Parental Responsibility to any person in whose favour it is made for as long as the Order is in force. Parental Responsibility is concerned with issues of bringing the child up, caring for him and making decisions about him. A person with Parental Responsibility has the right to determine the child’s religion, education, name, appointing a Guardian for the child, consent (or not) to the child’s medical treatment, consent (or not) to marriage, represent the child in legal proceedings, consent (or not) to adoption and all other matters having a direct influence on the major decisions affecting a child.

Obtaining parental responsibility (PR)

There are three ways of obtaining parental responsibility:

  1. In respect of children born after 1st December 2003 by entering
    the father’s name on the birth certificate when jointly registering the
    birth with the mother.
  2. By agreement (we can prepare an agreement on your behalf and
    arrange its registration with the courts).
  3. By application to the court.

Issues About Paternity

If the mother of the child maintains that the person who is applying to the Court is not the father of the child, then it will usually be the case that this point has to be determined before any Orders can be made under the Children Act. What follows is an explanation of the DNA Testing process, which is often invoked to establish Paternity.

DNA Testing

The technique known as DNA fingerprinting, or genetic fingerprinting, was developed by Professor Alex Jeffreys at Leicester University. The technique extracts from blood (or semen, hair roots or other body tissues), DNA which is an acid found in our cells. The substance is cut into fragments, separated into bands and then developed onto an X-Ray film. All people inherit approximately half of our DNA bands from each parent, positive proof of parentage can be established by discovering those bands. By contrasting samples taken from the mother and the child, it is possible to identify the bands that must have come from the child’s father. Consequently analysis of the putative father’s DNA will then determine whether he possesses the missing bands or not. The chances of a non-biological father (other than an identical twin) possessing the true biological father’s bands is described as thirty thousand million to one. This represents six times greater than the world’s population.

If DNA testing is required it would be undertaken by a court-approved DNA testing service. Generally samples will be taken from the child, the Mother and the putative father; however, it is possible for DNA testing to be undertaken using just the samples from the child and putative father.

The Court can order DNA testing. If a person refuses to take any step required following a direction for blood testing, the Court is entitled to draw “such inferences, if any, from that fact as appear proper in the circumstances”. These powers of inference are wide enough to extend to an inference of the child’s actual paternity. The Court of Appeal has held that if a mother makes paternity allegations against one of three possible men, and that man chooses to exercise his right not to submit to be tested, the inference that he is the father should be virtually inescapable. He would have to advance very clear reasons for his refusal – reasons which it would be just and fair and reasonable for him to be allowed to maintain. The power to draw such an inference applies whether it is the mother or putative father who refuses to agree to testify, but if the mother who has care of the child indicates such refusal, this is likely to prevent an order for testing being made. Again however her refusal without just and fair reason could be used against her.

 


Howe & Spender Solicitors is regulated by the Solicitors Regulation Authority, No.00173958