Foys - Matrimonial & Family Issues

In contemplating divorce or separation, most parents’ first consideration is likely to be the welfare of their children, and they will want to make sure that arrangements are agreed and put in place to safeguard their future. There are many things to be considered and a member of our family team will be able to provide full advice.

• Parental responsibility

This is the right to make major decisions about the child’s upbringing, such as education, health and welfare. With married couples, both the mother and the father have parental responsibility for the child. This remains the case even if they later separate or divorce. Where a couple is not married, a differentiation is made between children whose births are registered before or after 1st December 2003. If the birth is registered before 1st December 2003, only the mother of the child has parental responsibility. However, the father can acquire it by obtaining an order from the court or by a written agreement. He will also acquire parental responsibility if a Residence Order (see below) is made in his favour. If the birth is registered after 1st December 2003, the father can acquire parental responsibility if both parents register the child together. Otherwise an order from the court or a written agreement is required. It is also possible for others to acquire parental responsibility.

For example, a Local Authority in whose favour a Care Order is made acquires parental responsibility. This is shared with the parents who had parental responsibility prior to the Care Order. Stepfathers cannot apply for parental responsibility, but can obtain it by way of obtaining a Residence Order.

• Residence

Previously know as ‘custody’, residence relates to where a child shall live following a divorce or separation. If the separating parents cannot agree on this, a Solicitor can help them to make the best arrangements. They can also ask the courts to decide, by way of issuing a ‘Residence Order’, which will consider what is best for the child’s upbringing. Such things as the child’s sex, age and background will be considered as well as his/her physical, emotional and educational needs, the likely effect of any change in circumstances, the situation of siblings, the capability of each parent in looking after the child and the child’s own wishes or feelings.

• Contact

Previously known as ‘access’, contact is the right of the child to see the parent (and sometimes the grandparents) with whom he or she does not live. If the parents cannot agree on the amount or frequency of contact, a member of our family team can help and the courts can be asked to make a Contact Order. In the same way as with a Residence Order, above, the courts will always consider the best interests of the child and will address such things as where and when any visit should take place and who should deliver and collect the child.

• Change of name

A child, under the age of 18, can have it’s name changed by way of Deed Poll, only with the consent of those with parental responsibility (see above). If any person with parental responsibility is absent and cannot be found, an application to court to allow the change of name must be made. Children aged 16 and 17 must also consent in writing to any change of name by Deed Poll.

• Adoption

Any person adopting a child becomes that child’s legal parent and assumes parental responsibility. Following legal adoption, the child’s natural parents will no longer have any rights towards the child, and the child will normally take the surname of the adopting parent. The child will also inherit from the adopting parents in the same way as any child born to them.

The natural parents can contest the adoption in which case legal advice will be necessary to obtain a ‘freeing order’ or to ask the courts to override the natural parents objection.

Married couples applying for adoption must do so jointly, but for unmarried couples, the Adoption Order will only be made in the name of one of the partners.

An Adoption Order can be applied for as soon as a child starts living with the adopting parents, but the adoption hearing will not take place for 3 months (or 3 months from the date when the child reaches 6 weeks old). An Adoption Order cannot be granted for 12 months in the case of children being adopted from overseas.

• Care proceedings

Where the Local Authority believes that a child is not being properly cared for, it may take care proceedings in respect of that child by applying for a ‘Care Order’ which could lead to the child being taken away from the parent and placed in the care of the Local Authority. The Social Services Department will take its case to a court and the child will be represented by a ‘Children’s Guardian’, whose job it is to act on the behalf of the child in the hearing. The Court will establish what evidence it needs to decide the case and will set a date for a hearing.

The parent can also apply to the court to object to the Care Order, requesting that the child continues to live with him/her or with a relative. A court may decide on a Supervision Order, which means that the child can continue to live with the parent under the supervision of the Social Services, or a Family Assistance Order, meaning that a Social Worker will keep in touch with the family.

If a child is already in care and a parent wishes to take him/her out, the parent must apply to the court for a ‘Discharge’ to the Care Order.

• Financial arrangements

When a couple divorce or separate, both parents are responsible for the financial support of any children involved, regardless of whether or not they were married or with whom the children live. It is better if this can be agreed voluntarily, or with the help of a member of our family team, but if it cannot, then appropriate action can be taken to secure financial support.

For further information on children issues, please contact the office nearest to you or email samantha.derbyshire@foys.co.uk.