Disputes involving a child/children
The Court refers to the following checklist in deciding disputes involving a child:
- the wishes and feeling of the child – this is dependent on the age of the child;
- the child’s physical, emotional and educational needs;
- the likely effect on the child of any change in circumstances;
- the child’s age, sex, background and any other characteristic which the Court considers relevant;
- any harm which the child has suffered or is at risk of suffering;
- how capable each parent is of meeting the needs of the child;
- the range of powers available to the Court.
The procedure can very from Court to Court but will usually follow the following formula. Once the application has been issued, the Court will set a preliminary hearing date. At Court the parties are given the opportunity of meeting a Children and Family Reporter to see if any agreement can be reached. If it appears this is not possible, the Judge is likely to ask a Children and Family Reporter (CAFCASS officer to prepare a formal report. This usually takes place 16-20 weeks and will involve the Reporter talking to both parties, usually together and then on their own and sometimes talking to the child. This depends on the child’s age. This report is very important because the Judge is likely to listen very carefully to the recommendations made by the Reporter in reaching a final decision.
The report is disclosed to the parties before the next hearing. It is a confidential report and must not be discussed with or shown to anyone else.
There will then be another hearing to see if the case can be resolved following the report.If there is still disagreement, the Judge will order both parties to file written statements on their case and then list the case for final hearing. The preliminary hearings are usually dealt with in a small private room. The final hearing is usually in a full Courtroom but it is in private. At that hearing the parties give evidence, as to any witnesses, and are cross-examined.
The Judge can make one or more of the following orders:
- Prohibited Steps Order – forbidding a parent from doing something;
- Child Arrangement order (formerly called Contact and residence orders) – Following the introduction of the Children and Families Act 2014 which came into force on 22 April 2014, “contact” and “residence” orders are no more. Instead, there is now a single order, a “child arrangements order”, which deals with the arrangements as to “with whom a child is to live, spend time or otherwise have contact” and “when a child is to live, spend time or otherwise have contact with any person
- Specific Issue Order – deciding a special issue relating to the child.
We can give you an indication of the way Judges in practice usually approach cases involving children. Firstly, a child should not be involved in the dispute. It is not for the child to decide the dispute. Secondly, it is nearly always in the interests of the child to remain in contact with both parents. Payment of maintenance or the lack of it is never a reason for stopping contact and is in no way connected nor linked to a dispute involving the child. Contact is the right of the child not the parent.
When parents of a child are married, they each have parental responsibility. This means the rights, duties, powers and responsibilities in relation to the child. In other words, the right to say how he is raised, which school he goes to, etc. Parental responsibility is not lost when the Judge makes any of the above Orders.
From 1st December 2003, a father who is not married to the mother at the time of the child’s birth will have parental responsibility if the father’s name is on the child’s birth certificate. This will only apply to children born after 1st December 2003 and not to children before that date. If the father marries the mother after the child is born, he will acquire parental responsibility from the date of the marriage.
When parents of a child are not married, and the child was born before 1st December 2003, only the mother has parental responsibility unless there is an Agreement signed between the mother and father that he should have it. Alternatively, the father can apply to the Court for it and Courts will usually make such an Order unless there is a good reason not to.
If you have any questions or need any further advice, please do not hesitate to contact us and we will do our best to accommodate you.