Children

If you are a parent, step-parent, grandparent or someone who lives with a child that is not your own, you may be able to ask the Court for help if you are concerned about a child’s welfare.  The Court’s overriding concern is the welfare of the child or children and is obliged to consider what is in each child’s best interests.  The interests of any adults are only of concern to the Court when they have an effect on the best interests of the child or children.  Even if you are not in the above categories, anyone concerned about a child’s welfare can ask the Court for leave to make a full application.
 
The main “non-care type” order sought through the courts is a Child Arrangements Order which settles with whom the child spends time with (formerly Contact and Residence Orders).  It is also possible to ask the Court to decide on a “Specific Issue” – e.g. education or medical decisions, or changing a child’s surname – or to ask the Court to forbid something – a “Prohibited Steps Order”– e.g. where someone has threatened to take a child abroad.
 
If a parent is unhappy about the way in which his or her child is being cared for, or feels that the child ought to be seeing more of the non-resident parent, then s/he can apply to the Court using a standard application form. The application fee payable to the Court varies (see the Court service website for up to date information on Court fees), but this can be reduced or waived by the Court for those the Court considers unable to pay or pay in full. 
 
Before an application can be made to court, a potential applicant is required to attend a Mediation Information Assessment Meeting (MIAM), which will explain what options might be available for mediation, and how it all works. Legal Aid is sometimes available, depending on means.  The aim of the meeting is to see if mediation could be used to resolve difficulties, rather than the case going to court.  The Court is required to know that mediation has been considered before it is able to proceed with an application.   There are exceptions to this requirement, but only in cases where there is urgency e.g. where a child’s safety is at risk.
 
Once the application is filed with the Court, a date will be given for a short initial hearing where the Court will see if the parties can agree on the way in which to go forward.  If this is not possible, then the Court will give “directions” on the way in which the case will be conducted from then on.  There will be checks carried out by “Cafcass” (Children and Family Court Advisory and Support Service) which is a service attached to the Courts and therefore independent of the parties.  A telephone interview with each party will take place and a short summary provided for the court for the first court appointment.
 
Rarely, the court will commission a “Cafcass Report” at the first hearing.  A Cafcass Officer (Family Reporter or Reporting Officer) will meet with both parties and speak to the child or children concerned so as to gain information and carry out an assessment of the case.  The Cafcass Officer has been described as the “eyes and ears of the Court” and his or her view is very important when the Court comes to consider the case again.  The Cafcass Officer will consider the “checklist” set out in the Children Act which the court must have regard to:-
 
The wishes and feeling of the child concerned in light of his/her age and understanding
The child’s physical, emotional and educational needs
The likely effect on the child of any change in their circumstances
The child’s age, sex, background, and any characteristics the Court considers relevant
Any harm the child has suffered or is at risk of suffering
How capable each of the child’s parents or other relevant person is of meeting the child’s needs.
The range of powers available to the Court
 
After the Cafcass Officer has provided a written report, there is usually another short hearing for the Court and the parties to consider the recommendations and again try to settle the case using the Cafcass Officer’s conclusions as a basis for agreement.  However, if this is not possible, the Court will usually then make arrangements for the case to be given a final hearing date.  Sometimes further reports may be requested, and the Court can make virtually any order it feels is best for the child concerned, so sometimes the outcome is something that neither party considered.  It is therefore very important for the person applying for the order to consider his or her situation very carefully not just at the start of the case, but at every stage during it.
 
Parental Responsibility & Parental Responsibility agreements
 
1. Who has parental responsibility?
 
A father and mother of a child who are married to one another automatically have parental responsibility for the child.  If the parents are not married to one another, only the mother has parental responsibility unless the father’s name and declaration are on the child’s birth certificate.  Where a person has a “living with” Child Arrangements Order for a child they have parental responsibility.  Just because another person acquires parental responsibility does not mean that the parent or parents lose it, as more than two people can have parental responsibility at the same time.
 
English law does not try to define in any detail what parental responsibility means.  Here are a few things that are included in the term:
 
(a) Looking after the child Providing care, especially for the younger child, and housing for all dependent children is one of the essential responsibilities of any parent.
(b) Contact with the child Although it may not be an absolute right, a parent not living with the child has a strong claim to contact.
(c) Medical treatment Generally speaking, those with parental responsibility can give consent to medical treatment; but so too can a mature child give consent to his or her own treatment.
(d) Education Parents have a responsibility both as parents, and at law, to ensure their child is educated. 
                        
2. Parental Responsibility
 
The child’s mother and a married father have Parental Responsibility automatically, as does an unmarried father where a child is born after December 2003 and the father’s name appears on the birth certificate.   Parental Responsibility is given as part of other orders such as Adoption, or Care Orders.  The child's father (and step-father) can also acquire Parental Responsibility: -
 
(a) Parental Responsibility Agreement
 
Parents may agree that the father (or step-father) should have parental responsibility, but that agreement is only effective if a formal document is signed by both parents and witnessed by a court official.  These are very straightforward documents, and if the parties are in agreement, there is no difficulty about recording this in a Parental Responsibility Agreement.  However, it does have a significant legal impact and legal advice should always be sought before entering into such an Agreement
 
(b) Parental Responsibility Order
 
If a mother refuses to agree to the father (or step-father) having parental responsibility, then he can apply to the Court for a Parental Responsibility Order.
 
(c) “Living with” Child Arrangements Order
 
By obtaining such an order in his favour the father (or step-father) will have parental responsibility and the Court must make a Parental Responsibility Order. 
 
(d) Marriage of father & mother
 
Where the father and mother of the child subsequently marry, the father then automatically has parental responsibility.
 
(e) Appointment as child's guardian in a will
 
The father can be appointed as a testamentary guardian by the child's mother.  His appointment takes effect only on her death and, as guardian, he then has Parental Responsibility.
 
4. Financial responsibility for the child
 
Even if the father does not have Parental Responsibility he does not cease to be the child's parent, biologically and at law, and he is still liable to maintain the child financially.
 
Testamentary guardians for children
 
Everyone should have a will, but it is especially important to have one when there are children under 18 involved.  Even if your first choice for a guardian would be the other parent, who may or may not have Parental Responsibility, you should still consider what you would want to happen to the children if the other parent died first, or at the same time.  When a parent or other person with a Residence Order appoints a guardian in their will, that guardian will take over Parental Responsibility for the child immediately upon the resident parent’s death.  This will also happen where there is no one else with Parental Responsibility.  Even if there is a surviving person with Parental Responsibility, then the guardian appointed by the parent’s will still has rights to ask the court to alter the arrangements for the children if he or she feels it is necessary.
 
Making a will is not expensive, and does not have to be made “for all time”.  They are easily reviewed or amended.  Not only should you consider the position in respect of a guardian for the children, but you can also select your own Trustees to administer the children’s inheritance and fix a later date for the children to receive significant money – i.e. 21, 25 or 30 years of age.  Without a will, you will not have any control over the destination of your estate.
 
Child maintenance
 
The Child Maintenance Service is currently in charge of operating the Child Support Act, which is still the governing legislation for child maintenance, although it has been amended many times since!   The courts have very limited jurisdiction over child maintenance, although it is still possible to include child maintenance within a financial order on divorce, if the parties are in agreement.
 
The Child Maintenance Service uses rigid formula to calculate child maintenance, which can sometimes give an unrealistic result when considering other circumstances in a particular case.  A calculator can be found on the Child Maintenance Options website via Gov.uk.  Essentially it requires a percentage of the Non-Resident parent’s gross income - regardless of housing costs, loan repayments etc – for child maintenance payments.  There is a reduction of 1/7th for each night on average the child(ren) stay overnight with the Non-Resident parent, provided there are at least 52 overnight stays a year, and a further deduction if there are children in the Non-Resident’s parents’ own household (even if they are not his/hers). 
If an agreement cannot be reached, the CMS offers: -

1. A child maintenance liability calculation (Direct Pay)
 
-  a fee for the assessment and then payments are made directly between the parents
 
2. Enforcement of child maintenance payments (Collect and Pay)
 
-  The CMS collects and passes on payments.
 
-  The CMS adds a 20% levy on top of the assessment amount for the Non-Resident parent; and then deducts 4% from the amount paid before passing on the balance to the Resident parent.
 
Rarely, the court can make orders relating to child maintenance, or school fees orders.  As always, every case is different, so contact us for more information about your specific case.
 
 

 

Karen O’Neill & Co., Family Law Solicitors   2010