Family Portrait

Children

Issues involving children can be very emotional and distressing and in some cases urgent applications are required, it is always advisable to obtain specialist advice.

 

At your first appointment we will discuss whether each parent has Parental Responsibility for the children.(PR) this is defined by section 3 of the Children Act 1989 as ‘ all the rights, duties, powers, responsibilities and authority that by law a parent of a child has in relation to the child and his property.’ This includes the right to be consulted on major issues, such as educational and health questions. A mother will automatically have PR for a child regardless of her marital status. A father will automatically have PR if he was married to the mother at the time of the child’s birth. Unmarried fathers may acquire PR in one the following ways:-

 

  • If the father is named on the birth certificate (births registered after 1st December 2003)

  • Marrying the mother of their child

  • By agreement or court order

 

If issues concerning children cannot be agreed by Parents, an Application to the court under The Children Act 1989 (as amended by the Children and Families Act 2014 ) will be advised to determine any dispute. The court must treat the welfare for the child as paramount.

 

The Children Act 1989 provides a ‘welfare’ checklist that the court must consider when dealing with these types of orders. The court will consider the following:-

 

  • The ascertainable wishes and feelings of the child concerned (taking into consideration the child’s age and understanding)

  • The child’s physical, emotional and educational needs

  • The likely effect of any change of circumstances on the child

  • The age, sex, background and any characteristics of the child which the court considers relevant

  • Any harm which the child has suffered or is at risk of suffering

  • The capability of the child’s parents, and any other person the court considers relevant, of meeting the child’s needs

 

What type of orders can I apply for ?


Before the Children and Families Act 2014 there were 2 types of order under The Children Act known as a Residence order i.e. where a child will live and a Contact order i.e. how often a child will see the non-resident parent. These orders have now been replaced by Child arrangement Orders.

 

A Child Arrangement Order (CAO) under the Children and Families Act 2014 allows the court to determine the following:

 

  • Who a child may live, spend time or otherwise have contact with, and

  • When a child is to live, spend time or otherwise have contact with any person

 

In addition to the court may additional orders. The main ones being:

  • A Specific Issue Order:- This enables the court to determine specific disputes between parents. For example which school a child might attend or if a child can go on holiday if disputed

  • A Prohibited Steps Order:- This enables the court to make an order restraining one parent from taking a particular action in relation to a child. For example, removing a child from the country


Neither a prohibited steps order, nor a specific issue order may be made in relation to a child over the age of 16.

Who can apply for a Child Arrangements orders?

 

The following  are automatically entitled to apply to court for any order with respect of a child;-

 

  • Any parent, guardian or special guardian of the child

  • The child’s step-parent or any person who has Parental Responsibility (PR) for the child under a PR agreement or order.

  • Any person who is named in the Child Arrangement Order (CAO) as a person with whom the child is to live

 

Alternatively, the following people can apply to court for a CAO:-

 

  • Any party to a marriage (regardless of subsequent divorce) where the child is a child of both parties. Including any other child who has been treated by both of those parties as a child of their family (except foster children)

  • Any person with whom the child has lived with for at least 3 years. This period need not be continuous but must not have begun more than five years before and ended three months before the application being made.

  • Local Authority foster carers who have had a child living with them for one year immediately before the application is made.

  • A child’s relative who has had the child living with them for one year immediately before the application is made.

 

The list is not exhaustive. In addition anyone, for example grandparents, may seek an order from the court, provided they first apply to the court for leave to apply.

Application For Permission

A person who does not fall into any of the above categories must apply to the court for permission to make an application for a CAO.

The information on this page is for general guidance only and should not be treated as a definitive guide or be regarded as legal advice. If you need more details or information about the matters referred to on these web page please seek independent formal legal advice. This information was correct at the time of going to press in September 2020.

 

The law in this area is subject to change, we cannot be held responsible if changes to the law outdated this publication. Links provided on our website are for your convenience. It does not imply reliability or endorsement by us, and we accept no liability in respect of the content.