The law relating to children in England and Wales was substantially revised by the Children Act 1989. Many terms which had been familiar to most people, such as custody and access, were scrapped, and new terms came into being such as Residence and Contact. The fundamental principle of the Act is that the child’s welfare is to be the court’s paramount consideration.
Once court proceedings relating to a child have been commenced, it usually makes little difference whether the parents of the child were married to each other or not. However, the question of whether or not the parents were married makes a significant difference in cases where no court proceedings have been commenced.
Where the parents were married to each other, then they both have what is known as Parental Responsibility. Broadly this means all the legal rights and duties which parents have in relation to their children and the property of their children. If, however, the parents were not married to each other then only the mother automatically has parental responsibility. In respect of births registered after 1st December 2003 the father will also automatically have parental responsibility if his name is on the child’s birth certificate; if it is not then he can acquire parental responsibility either by entering into a Parental Responsibility Agreement with the mother or by obtaining through the courts a Parental Responsibility Order.
It is very rare for parental responsibility to be taken away from a parent, although the court has the power to do this in exceptional circumstances. If the parents of a child who both have parental responsibility separate, they continue to have parental responsibility, and therefore the right to have a say in the upbringing of their child. This should not affect decisions as to daily routine, which would normally be decided by the parent with whom the child lives, but would affect major decisions over the child’s upbringing such as questions of education, religious upbringing, medical treatment and change of surname.
In an ideal world separated parents would consult together and agree on such matters and on questions of where and with whom the child should live and what contact he/she should have with the separated parent. In practice this does not always occur and it is then open to either parent to make an application to the court for the matter in dispute to be determined. This could be an application for a Residence Order (determining where the child is to live) or for Contact Order (determining the amount of contact the child is to have with the separated parent); or for a Specific Issue Order which determines any other question relating to the child, (for example which school he/she is to attend); or for a Prohibited Steps Order, which is an order telling the other parent that he/she is not to take a particular step in relation to the child (for example, not remove the child from the United Kingdom).
When our clients consult us in relation to disputes over their children, we always encourage them so far as possible to resolve their disputes without having recourse to court proceedings. This is usually better for the children concerned. The use of mediation services should be considered. When an application to the courts is unavoidable, we endeavour to conduct the proceedings with the minimum of delay and acrimony.
Where Maintenance for children is sought, unless the rate of payment can be agreed, it is usually necessary to make an application to the Child Support Agency. The amount payable by the non-resident parent is a percentage of his/her net income: 15% for one child, 20% for two children and 25% for three or more children. The amounts payable will be reduced if the children regularly stay overnight with the non-resident parent and/or there are dependant children in the non-resident parent’s new household. The resident parent’s income is ignored in calculating what is payable. There will undoubtedly be many cases where the result will be unfair because of the lack of flexibility and discretion in the system.
In some circumstances the courts have the power to make child maintenance orders and other financial orders for the benefit of children, including orders for the payment of a lump sum for the benefit of the child and for the transfer of a property. Such orders are not commonly made, but can be very useful in some cases. A lump sum order could, for example, be obtained in order to secure a contribution from the other parent towards expenses that have been incurred prior to a child’s birth and in the early years (purchase of nursery equipment, pushchairs etc).
Of course not all legal matters relating to children are of a contentious nature. You may require assistance in connection with an uncontested adoption, an agreed change of name of a child, or the preparation of a Parental Responsibility Agreement. We regularly assist our clients in connection with such matters.
If you require advice or assistance in connection with any issues relating to children, telephone us on 01332 293 293 or e-mail us at firstname.lastname@example.org to arrange a meeting with one of our solicitors. The first 30-minute consultation is free of charge.
Print this page (PDF).