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
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.
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
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
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
The range of powers available to the Court
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
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
|(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.
||Parents have a responsibility both as parents, and at law, to
ensure their child is educated.
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
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
(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
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
Testamentary guardians for children
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
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.
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.
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
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
Karen O’Neill & Co., Family Law Solicitors