Children Matters

All Family Solicitors at Stewarts are accredited members of the Children Order Panel and Collaborative Lawyers Association.

Our children lawyers are experienced in assisting parents and guardians of children by providing sound, clear advice on the legal requirements and the legal remedies available in relation to parental responsibility, contact and residence of children, together with Prohibited Steps Orders and Specific Issue Orders.

In cases where Social Services have intervened in respect of children we can provide experienced advice and representation to parents. Our matrimonial and family lawyers have experience in dealing with all types of Public Order cases to include, Care proceedings, Adoption and Secure Accommodation cases.

We can also assist in Private Law proceedings, if you are applying to adopt a child, or if you are objecting to someone trying to adopt your child.

We can arrange consultations at short notice at any of our office locations.

Residence & Contact Arrangements

The consequences of a relationship ending need particularly careful management when children are involved. Residence and Contact questions always arise when parents separate. “Residence” means where a child lives. “Contact” means the time a child/children spend with a person or people other than where they ordinarily live.

An arrangement called “Shared Residence” is becoming increasingly popular. It can provide for a child to live with both parents and spell out how the time will be divided. A Shared Residence Order can be made even if the division of time is unequal between the two homes. These Orders are especially popular because they are seen as reinforcing the significant and continuing role that both parents will play in their children’s lives after the separation.

The concept of Residence and Contact used to be called “Custody” and “Access”. The terminology changed over twenty years ago, however, these old expressions have stuck, and are still sometimes used interchangeably with the new ones. The change in terminology also signalled a change in focus, questions of Residence and Contact are always decided by looking at what is best for the children, and the rights and wishes of parents are secondary to that.

A Residence Order made in favour of a person who does not already have Parental Responsibility gives them that status for as long as the Residence Order lasts. A person in whose favour a Residence Order is made is legally entitled to remove the child temporarily from the UK without needing permission from everybody with Parental Responsibility.

Contact Orders

There is no “one-size fits all” Contact arrangement. Different patterns of contact work for different families. A common pattern we see is for children to stay with the parent they do not normally live with on alternate weekends and for half of holiday periods. However, geography and other issues may make that pattern less than ideal for a particular family.

Contact can also take the form of visits, telephone calls, time together using Skype and similar services, and other forms of indirect communication. These are especially important where geography prevents more frequent face-to-face contact.

A Contact Order can include provisions that spell out precisely how Contact operates; conditions and directions for handovers, who must do (or not do) what during Contact, how parents are to communicate over any issues that arise during Contact visits, and similar. Whether the attachment of conditions like these to a Contact Order proves necessary depends on the particular case.

Care Order Proceedings

A care order is given out by a court and puts a child under the care of a local Health and Social Care (HSC) Trust. The Trust then shares parental responsibility for the child with the parents and will make most of the important decisions about the child’s upbringing, such as where they live and what school they go to.

A court can only make a care order if it is sure that:

• the child is suffering, or is likely to suffer significant harm
• the harm is caused by the child’s parents
• the harm would be caused because not enough care would be given to the child by the parents in the future
• the child is likely to suffer harm because they are beyond parental control

It is vitally important that you have experience care order solicitors instructed at the earliest stage if you think there is a threat of your local Trust intervention as it is by no means a foregone conclusion.

When a care order is made, it requires the local Trust to look after the child and provide them with accommodation and care. The Trust is responsible for the child’s welfare while the order is in place. A care order can be made for children under 17 years of age – or under 16 if they are married or in a civil partnership. A care order lasts until the child becomes 18 unless it comes to an end earlier by the child being adopted, a residence order is made or the court discharges the order.

In most cases, decisions about the welfare of a child will be taken by their social worker, foster carer or residential care worker. The child’s birth parents may be involved in those decisions.

The social worker in partnership with the foster carer or residential care worker, needs to take decisions about what must be done to help the child achieve his or her full potential.

Their responsibilities include:

• drawing up a personal education plan (PEP) for the child and making sure they are well supported at school
• making sure the child attends school every day
• choosing and applying for a school place
• making sure that there are good links with the school
• being involved in any assessment for special educational needs
• making sure that the foster/kinship carers attend parents’ evenings and any other school events which parents would attend.

Adoption of a Relative or Stepchild

If you wish to adopt your partner’s child or a relative who normally lives in the UK, you will need to tell your local trust at least three months before starting your adoption application with the court. The trust will be able to provide you with advice and information. You should also seek legal advice.

What happens next?

The court will ask your local trust to provide a report on your partner, the child and other birth parent. This will be prepared by a social worker. The child’s other parent(s) must normally agree to the adoption, although sometimes the court may decide this is not necessary. The law requires that both you and your partner need to adopt the child, even though one of you is already the child’s parent.

Alternative to adoption

A step-parent can also now get parental responsibility (link to PR section) for their partner’s child if both birth parents agree, or by order of the court.

This means there is an alternative to adoption for step-parents who wish to get parental responsibility for their step-child. It has the advantage of not removing parental responsibility from the other birth parent and does not legally separate the other birth parent’s family. This new measure also applies to civil partners.

Adopting relatives from overseas

To adopt a relative from overseas – known as intercountry adoption – you will usually need to go through the same process as adopting a child not known to you from overseas. You should contact your local trust.

Things to consider

An important point people can forget is that the courts view adoption from the child’s perspective rather than the adult’s. What an adult wants is taken into account, but an adoption order will only be granted if it is viewed as being in the best interests of the child.

Some people feel the need to adopt their stepchild in order to make the family feel complete however, this is not a good enough reason for a court to grant an adoption order. Our adoption solicitors can advise you and assist in this life changing process.

Frequently Asked Questions

Here our experience children law solicitors answer some of the most frequently asked questions during our initial free solicitor consultation.

Parental Responsibility Explained

What is parental responsibility?

Parental Responsibility definition in law: “All the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

All mothers and most fathers have legal rights and responsibilities as a parent – known as ‘parental responsibility’.

If you have parental responsibility, your most important roles are to:

• provide a home for the child
• protect and maintain the child

If you have parental responsibility for a child you don’t live with, you don’t necessarily have a right to contact with them – but the other parent still needs to keep you updated about their well-being and progress.

You’re also responsible for:

• disciplining the child
• choosing and providing for the child’s education
• agreeing to the child’s medical treatment
• naming the child and agreeing to any change of name
• looking after the child’s property

Parents have to ensure that their child is supported financially, whether they have parental responsibility or not.

Who has parental responsibility?

A mother automatically has parental responsibility for her child from birth.

A father usually has parental responsibility if he’s:

• married to the child’s mother
• listed on the birth certificate (after a certain date, depending on which part of the UK the child was born in)

You can apply for parental responsibility if you don’t automatically have it.

If the birth is registered in Northern Ireland, a father has parental responsibility if he’s married to the mother at the time of the child’s birth.

If a father marries the mother after the child’s birth, he has parental responsibility if he lives in Northern Ireland at the time of the marriage.

An unmarried father has parental responsibility if he’s named, or becomes named, on the child’s birth certificate (from 15 April 2002). If a child is born overseas and comes to live in the UK, parental responsibility depends on the UK country they’re now living in.

Same-sex parents

Same-sex partners who were civil partners at the time of the treatment will both have parental responsibility.

For same-sex partners who aren’t civil partners, the 2nd parent can get parental responsibility by either:

• applying for parental responsibility if a parental agreement was made
• becoming a civil partner of the other parent and making a parental responsibility agreement or jointly registering the birth

Apply for parental responsibility

If you’re not the mother, you can apply to court to get parental responsibility. You need to be connected to the child, e.g. as their father, step-parent or 2nd female parent. More than 2 people can have parental responsibility for the same child.

• Sign a parental responsibility agreement -If you’re a father who wants parental responsibility and the mother agrees, fill in a parental responsibility agreement. There’s a different agreement form for step parents. Take the agreement to your local county court or family proceedings court, where it can be signed and witnessed.
• Apply for a court order- If you want parental responsibility but can’t agree on arrangements with the mother, you can apply for a court order.

You may be able to get help with court fees if you’re on benefits or a low income.

Parental Responsibility obtained by a Residence Order or a Special Guardianship Order only lasts for as long as that Order remains in force. A person who has Parental Responsibility through one of these Court Orders will lose it when the Order expires. Parental Responsibility cannot be taken away from a parent who has it automatically; except through an Adoption Order.

The Court can remove a parent’s or stepparent’s Parental Responsibility if that has been acquired through a Parental Responsibility Agreement or Parental Responsibility Order. However, it’s rare for a Court to do this, and the circumstances where this might be appropriate are exceptional.

Otherwise, Parental Responsibility may not be removed, surrendered or transferred. It may, however, be delegated. This means a person with Parental Responsibility can arrange for another person to meet some or all aspects of it in relation to a child. This can prove useful, for example, if a child or children are being educated in England but the parents live overseas. The parents might decide to delegate Parental Responsibility to a family member or to a trusted adult in England whilst the child is at school here.

If I have parental responsibility for my child do I automatically have contact rights?

Although parental responsibility gives you certain legal rights in relation to the upbringing of your child and gives you some rights in terms of seeing them it does not automatically give you the right to contact them or have them visit of stay with you. If you cannot agree this amicably with your partner you will need to apply for a Contact Order from the courts.

I’ve got parental responsibility but my ex-spouse is preventing me from having access.

Parental responsibility does not really sort out the issue of access (now known as ‘contact’ in legal circles).

If you cannot discuss this with them and come to an agreement then you will have to appeal to the Courts to make a contact Order. A Contact Order is legally binding and your ex-spouse will be required to cooperate with contact.

The starting point is that contact with both parents is desirable, and likely to be in the child’s best interests, unless there have been allegations of, for example, abuse or neglect. If you cannot agree a sensible pattern of contact with your spouse/partner, you can ask the court to step in and make an order. The court will take into account a number of factors; called the “welfare checklist” to decide whether contact is in the child’s best interests. Such factors include the child’s own wishes and feelings and age. Clearly, contact needs to be age appropriate, and if the child is very young, it might be sensible to increase the level of contact gradually.

Can my ex-wife stop me being involved in our children’s upbringing?

With parental responsibility you have the right to be involved in all major decisions in your child life. This can be anything that significantly affects their upbringing such as education, medical treatment or religion.

Everyday decisions are left up to the parent who has residence of the children. Generally, the mother is given residence unless you or the courts decide differently. This means that she does not have to consult you about any day-to-day decisions.

As a parent you are legally bound to Pay Child Support. The amount that you pay is worked out by the Child Support Agency (CSA) and will depend on a number of things including how much you earn and how you have split custody.

You may decide to organise your visitation independently with your ex, and this is fine as long as you are both happy with the arrangement. If not, you will need to apply for a contact order and be assessed to determine what visitation you are given.

If your ex has residence of your children, she can take them out of the country for up to one month without your permission. If she wants to take them for longer or move abroad permanently, she will need your consent. If you have serious concerns about her taking them out of the country, then you can apply for an order to stop it.

Your parental responsibility and child support continues until your child leaves school or further education, which can be as young as 16 or finish when they are 19 and at university.

Finding out about your rights and responsibilities as a father is important so that you know what you are entitled to and what you need to do. If you can keep relations civil and handle the details with your ex then this can be better but, if not, you will have to go through the legal system to clarify things. Your ex has no right to stop you seeing your children and with a little bit of compromise and willingness you can both come to an agreement that is best for your children.

Can the children still live with me?

Usually if the children are settled with a particular parent, who is their primary carer, the courts will be reluctant to disturb the status quo except in extreme cases, such as where there have been allegations of domestic violence or child abuse.

The court does have the power to make orders determining when the child will see his or her parents (contact) and where the child will live (residence) if there is a dispute. Normally, the courts operate a “no order” principle, which means that they will not interfere by making an order unless doing so is in the child’s best interests.

Can I take my child out of the UK on holiday?

When there is no Residence Order, taking a child / children out of the UK for a holiday requires the consent of every person with Parental Responsibility.

If that consent cannot be obtained, then the Court’s permission must be sought. Taking a child out of the UK without consent may constitute a Child Abduction. If it is, it might have civil and criminal consequences. It’s a serious matter, and there might be significant penalties. This is true even if the child or children are taken away for a short holiday. It’s always advisable to clarify the situation with a Parental Responsibility specialist well in advance if you intended taking a child out of the UK. This is all the more important where there is any real doubt about whether all holders of Parental Responsibility will consent to the removal. If it’s not possible for parents to agree whether a child/children should be removed from the UK for a holiday, the matter must be referred to the Court to decide.

When a Residence Order has been made in relation to a child, the person in whose favour the Order is made can take the child away on holiday for limited periods. He or she can do so without the consent of the other holders of Parental Responsibility. The child/children may only be away for a month or less under this exception.

Whilst this strict legal right applies, it’s still sensible for a person with a Residence Order in their favour to consult the other holders of Parental Responsibility about any proposed visit overseas. At the very least, good and cooperative parenting should mean that those with Parental Responsibility should be informed in advance of the holiday and provided with a travel itinerary.

Can I relocate anywhere with my child without having to go to court?

The same considerations explained above apply equally to Child Relocation Cases. A relocation might be unlawful and a criminal offence without the consent of all holders of Parental Responsibility or a Court’s permission. Relocation cases are always fraught. Parents might be able to compromise on whether contact should be for two or three days a fortnight by splitting the difference. This is impossible where the decision is between the e UK and abroad or between Northern Ireland and another Country within the UK.

How much child maintenance will I get?

If you have children who live with you, you will be entitled to receive maintenance for their benefit from the non-resident parent. The amount will depend on the Child Support Agency’s guidelines. You can decide whether to use the CSA or agree a figure privately.

For more details, you may wish to look at the CSA website www.csa.gov.uk

I cannot afford the CSA demands what can I do?

A number of assessments made by the CSA are incorrect. You should check carefully all the information used by the CSA to make their assessment, especially income. You are legally bound to pay the amount requested by the CSA until such a time as your circumstances change.

Do I have rights to see my grandchildren?

The legal system recognises the importance of grandparents and offers an opportunity to apply through the court system for a contact order if necessary. Grandparents do not have an automatic right to make that application and you would have to apply to the court for permission to do so but provided that you it can be shown that the grandparent has had a meaningful and close relationship with the grandchildren then the court is likely to grant permission to be able to pursue an application for contact.

Change of Name

When a family’s circumstances change, it is not uncommon for parents to want those changes to be recognised. When a parent remarries, we are sometimes asked if a child’s surname can be changed to recognise the new family composition; such as adding a stepparent’s surname to the existing one, or using it in place of the existing surname.

If a child’s name is changed without the consent of everybody with Parental Responsibility, a Court can, and often will, reverse the change. It is therefore vital to seek expert legal advice before attempts are made to change a child’s name.

Where parents disagree about whether a child’s name should be changed, an application may be made to the Court. The type of application will depend on who is making it. The parent wishing the change a child’s name can apply for a Specific Issue Order. The parent opposing the name change would apply for a Prohibited Steps Order.