Children and the Law
The Children Act 1989
This is the most important Act relating to arrangements for children and states that when the court determines any question relating to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration. This is known as the Welfare Principle and it will determine any contested proceedings made under Section 8 of the Children Act.
When applying the Welfare Principle, there is a checklist of factors which must be taken into consideration by the court. These are as follows:-
- the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding).
- his physical, emotional and educational needs
- the likely effect on him of any change of circumstances
- his age, sex, background and any characteristics of his which the court considers relevant
- any harm which he has suffered or is at risk of suffering
- how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs
- the range of powers available to the court under the Act in the proceedings in question.
One of the underlying principles of the Children Act is that “the court shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all”. In other words, the court will not make an order unless it can be demonstrated that there is a positive need to do so and that the order will benefit the child.
A second very important principle is that delay is presumed to be harmful for a child.
There are four different types of order which can be made usually in the County Court or the Family Proceedings Court. These are as follows:
A residence order sets out the arrangements as to the person with whom a child will live. A residence order gives parental responsibility (if not already held) to the person in whose favour the order is made. A shared residence order can be made, determining that the child’s residence will be with more than one person. This does not always mean that the children’s time will be divided equally between each parent but there needs to be some substantial split of time.
People other than the child’s parents can apply. A residence order may be made in favour of one person or can be shared between two people so the children in effect have more than one place they consider to be their home and their time is shared between the two.
Contact was known as “access” and parents and the media still often use this word.
A contact order requires the person with whom a child lives to allow the child to visit or stay with the person named in the order or to have contact in some other form.
Again people other than the child’s parents can apply. Contact can be direct (visiting/staying) or indirect (letter/cards/presents). It can also be supported or supervised. Supported contact often takes place in a contact centre where the staff facilitate contact but do not supervise. Supervision is where the parent is carefully monitored during the contact session.
Applying for a contact order is hardly ever ideal because there is then very little flexibility for any of those involved but sometimes there is no choice.
Contact with his/her natural parents is regarded as a fundamental right of the child and there have to be strong reasons for a court to refuse contact.
A prohibited steps order is designed to prevent a parent doing a specific thing relevant to their child without the consent of the court. Such an order can be made in conjunction with a contact or residence order. Frequently, it is used where a parent is threatening to take the child out of the jurisdiction of the court. Prohibited steps applications have largely replaced wardship proceedings.
This order allows the court to determine an issue usually relating to some aspect of parental responsibility eg where there are differences as to schooling, medical treatment, changing a child’s surname and other specific aspects of a child’s upbringing. As with prohibited steps, the order can be made in conjunction with residence or contact orders.
These can be made either in the Family Proceedings Court of the County Court.
Do I need a court order?
Many people divorce or separate without making an application to court. They simply agree what the arrangements will be for their children either themselves, through mediation or through solicitor to solicitor negotiation. If they are divorcing, when the Petitioner issues proceedings, a statement of arrangements is filed at court detailing the arrangements. If the judge is satisfied with those arrangements the divorce can proceed to decree nisi without any Children Act orders being made.
Applications cannot be made for consent orders at the outset. One party applies and the other responds or makes a cross application. At the end of a case a Judge/Magistrates can make a consent order but only if they believe it is in the best interests of the children for an order to be made at all.
The Courts recognise that parents are generally best placed to know what is in their children's interests and are encouraging parents to work this out together, with the assistance of a qualified mediator. They acknowledge that mediation is not suitable in every case but for the vast majority it represents an opportunity for you to find a solution that fits best with your family’s circumstances.
Since April 2011, anyone applying to the Courts for assistance in resolving a dispute about parenting or finances following relationship breakdown has had to comply with the Pre-Application Protocol. This requires you to attend a meeting to learn about mediation – a Mediation Information Meeting (MIAM).
Legal aid is no longer widely available for divorce proceedings although if you are seeing a mediator and are legally aided you will be entitled to Help with Mediation if you instruct a solicitor who undertakes Family Legal Aid work.
National Family Mediation (NFM) is a network of professional family mediation providers based in England and Wales that work with families affected by relational breakdown. All providers aim to help clients achieve an outcome that works best for them and their family
If you would like to get more information about mediation and/or make an appointment you can contact NFM direct on 0300 4000 636 or you can contact a NFM family mediation provider in your area.
All services also take referrals from Solicitors, the court or other helping / support agencies.