Children

The Children Act gives Parental Responsibility to both parents (where married or registered on the birth certificate). This is legal responsibility for their children which will not be lost upon Divorce. This means that both parents should continue to be involved in all aspects of their children’s welfare consulting upon issues such as health and education. Regrettably, there are times when parents cannot agree on these issues or generally upon the arrangements to be made for their children.

If you are involved in a disagreement about arrangements for your children, the family law team at Fraser Dawbarns can offer you help and advice. Contact us today to see how we can help you.

Children and Section 8 Orders – Child Arrangements, Specific Issue and Prohibited Steps Orders

Child Arrangements Orders

Child Arrangements Orders have replaced what used to be known as ‘residence’/’custody’ and ‘contact’/’access’ Orders, and set down the living arrangements for children where these cannot be agreed and Court proceedings have been initiated to try and resolve the dispute as a ‘last resort’.

Each family will have different circumstances in terms of the ages of the children, the parents’/carers’ work commitments etc., and so Child Arrangement Orders can take different forms – the children might have an equal shared care arrangement, living between two homes, or they might be based in one home, but go to their other home one night in the week and on alternate weekends.

If there are concerns about domestic abuse, or alcohol/drug misuse, these will need to be investigated before any long-term Orders can be made – the Court will need to be satisfied that the arrangements will be safe for the children and the parents or carers.

A lot of the time, Child Arrangements Order will be between the parents, but we have seen these Orders involve grandparents and even older brothers or sisters.

Specific Issue Order

If a child’s parents or carers cannot agree about a foreign holiday, a course of medical treatment, or which school to enrol in, an application can be made to the Court for a Specific Issue Order for the matter to be decided for them and the child – the Court will consider both sides of the argument and decide what it thinks will be in the child’s best interests.

Prohibited Steps Order

Where a parent or carer wishes to stop the other from doing something with their child – such as moving a very long way away – because they do not think it will be in the child’s best interests, they can make an application to the Court for a Prohibited Steps Order. The Court will consider all of the factors involved, before making a legally binding decision.

The Family Law Department at Fraser Dawbarns has considerable experience in dealing with all of these types of application, and can help to try and reduce the stress of Court proceedings with either full representation for Hearings, or through ‘advice in the background’, helping out when needed with paperwork.

Why do some children cases go to court?

The Court Process will aim to resolve differences through Mediation, negotiation and if appropriate, the appointment of a Child and Family Court Advisor who will meet with the parents and the children. Sometimes parents cannot agree on where a child should be educated or whether, for example, they can go abroad on holiday with one of the parents. The Court can assist in determining these specific issues.

Occasionally parents threaten to remove their children, and in those circumstances, we can make an immediate and urgent application to the Court for a Prohibited Steps Order. We encourage parents to resolve these types of disputes through negotiation, but if that fails we are here to fully support and represent you through the Court Process. If you would like further advise on this area of law, please do not hesitate to contact a member of our Family Department to discuss how we might help.

Special Guardianship Orders

Sometimes parents are not able to provide their children with proper care, but placing the children with foster, or adoptive, families instead is considered too disruptive and disproportionate, and the family link still needs to be maintained, just with a different carer put in place for the children.

In these circumstances, a close relative can be appointed by the Court as the child’s Special Guardian. The children will still be legally linked to their parents and can still have regular contact with them, but the Guardian will be providing the day to day care, and long-term stability.

With adoption, the birth parents lose the legal link to the children and are not be able to make decisions for them, but with Special Guardianship Orders, the parents remain informed and involved – and can only be ‘trumped’ where necessary to meet the children’s best interests.

Many different circumstances could lead to a Special Guardianship Order being made but whatever the reasons, this will be an emotional and difficult time for the child in question and the wider family. The Family Law department at Fraser Dawbarns have experience in making applications for these Orders on behalf of relatives, working with Local Authorities, and also in advising relatives if this Order is being considered as part of other, ongoing Court proceedings, and will guide you through the process, keeping the emotional toll on all parties concerned a minimum.

Frequently Asked Questions on Children Matters

Many couples now separate. The divorce rate is running at nearly 50%. Many couples do not marry and simply cohabit. There is no longer a stigma attached to divorce or separation. Research concludes that where parents are able to work together and agree the arrangements for the children following separation, then any damage suffered by the children as a result of their parents’ relationship breakdown is significantly reduced and can be nil. The starting point is therefore to try and reach an agreement with the other parent, if that is not possible, mediation is encouraged. Research shows that mediation produces better outcomes than Court Orders. If mediation is not possible or does not succeed then negotiations through Solicitors can take place and if this is unsuccessful, as a last resort you can apply to the Court for a Child Arrangements Order. We can advise fully regarding mediation, negotiation through solicitors and a Court Application, if necessary.

CAFCASS are social workers that give advice to the Court in cases involving children. CAFCASS should complete basic safeguarding risk assessments at the start of all cases. These include checks with the police database and short telephone interviews with both parents. In some cases, if there are concerns about domestic abuse, mental ill health or alcohol/drug misuse, CAFCASS may have a longer-lasting role and be asked to investigate for a few months, before writing up a report for Court. Please note, CAFCASS will only become involved in a case if there is a Court Application but they do have a helpful website. Resolution also have a very helpful website.

Restrictions should not be put in place in terms of where the parent takes the children, or whom they allow the children to see, unless there are Court Orders in place confirming this, or serious safeguarding concerns – i.e., that the new partner has a history of violence or has alcohol/drug issues that can be established and are not just ‘hearsay’. The Courts encourage, and it is common sense, for parents to only introduce new partners when they are clearly in a settled relationship i.e. that has lasted more than 6 months The introduction should then be handled sensitively. It is very rare for the Courts to prevent children having contact with a parent’s new partner.

Parents should not change their child’s name unless they have permission from anyone who has parental responsibility for that child or alternatively, they have a Court Order. Even if the other parent does not have parental responsibility for a child, if that parent is having regular contact with the child then the name should not be changed without that parent’s consent. The Courts can and do order the child’s name to be changed back in such circumstances. Changing a child’s name is a serious issue and it is always sensible to obtain legal advice before proceeding with any such change.

If a mother gives birth to a child, she has parental responsibility for that child. If the parents are married, the father also automatically has parental responsibility for that child. If the father is named on the child’s birth certificate, the father has parental responsibility for that child. Parents who adopt children have parental responsibility for those children. Parental responsibility means you should have a say in all important aspects of that child’s life i.e. education, medical treatment and religion etc. If you are a parent, but do not have parental responsibility, you can apply to the Court for a Parental Responsibility Order.

Step-parents may not have parental responsibility for a child, even though they may be a significant presence in a child’s life on a day-to-day basis. In order to obtain parental responsibility a step-parent would need to either (1) enter into a formal PR Agreement with the other parents that hold PR and then send the Agreement to the Court to be made legally binding; (2) apply to the Court for a Parental Responsibility Order; (3) apply to the Court for, or be named, in a Child Arrangements Order, as a person with whom the child lives. Whether a step-parent needs to share parental responsibility would depend on the specific family circumstances – if their partner, the parent is on hand, they may not actually need to liaise with school teachers and doctors, but if one parent lives very far away, or the other has health issues of their own, the step-parent may need parental responsibility for day to day purposes, to step in and make decisions in the absence of the parents.

Taking a child abroad without the consent of every person with parental responsibility is a criminal offence and could lead to a prosecution. If you are intending to take your child abroad on holiday, we need to provide the other parent (or everyone with parental responsibility) with full details of the travel arrangements and ensure they are consenting. If they do not consent, you can apply to the Court for a Specific Issue Order to enable you to take the child on holiday. You would need to take specialist legal advice in relation to such an application.

It is a criminal offence to remove a child from the jurisdiction of England and Wales without the consent of every person with parental responsibility. This means you cannot move abroad with your child unless the other parent (or everyone with parental responsibility) consents. If the other parent will not consent, you can apply to the Court for a Specific Issue Order to enable you to move abroad. You would need to take specialist advice on applying for a Specific Issue Order to enable you to do this. This is a complex area of law, there is no guarantee the Court would allow you to move with the child.

It is a criminal offence for anyone to remove a child from the jurisdiction of England and Wales without the consent of the other parent (or everyone with parental responsibility). If you believe the other parent is about to move abroad with the children without your consent, it is possible to make an urgent application to the Court for a Prohibited Steps Order to prevent the move taking place. In these circumstances, you need to take urgent legal advice regarding such an application.

We refer to these cases as internal relocation cases. It is not a criminal offence for one parent to move from Norfolk to Wales without the other parent’s consent, but it is possible to apply to the Court for an urgent Prohibited Steps Order to prevent such a move taking place. Again, this is a complex area of the law and you would need specialist legal advice urgently to address this issue.

In some cases we may offer fixed fees for negotiations and/or applications to the Court in relation to children matters. Generally, we charge our hourly rate, which varies depending upon the experience of the fee earner. We do offer fixed fee appointments, which is currently £350.00 plus vat, for initial advice regarding financial matters or the arrangements for the children and more detailed advice regarding costs can be given at that fixed fee appointment.

Why Choose Fraser Dawbarns to Help You?

Pricing Options

In more complex cases that are beyond the scope of the fixed fee service, we offer a choice of pricing options to our clients. By offering the choice between undertaking work on either a fixed fee basis or at an hourly rate, we give you the freedom to select the pricing option that best suits your needs.

Giving you Total peace of Mind

We offer our clients the expert and comprehensive legal advice that they are entitled to expect. We also provide our clients with support, a sympathetic ear and peace of mind during what is a very difficult and emotional time.