legal matters involving children

Common questions concerning children and family law

Divorced or separated parents often raise questions concerning their respective responsibilities and rights. Here are some of the most common.

If you have a question regarding your responsibilities and rights as a divorced or separated parent, take a look at some of the common questions below.

Whenever children are involved in family disputes, complications arise, especially if parents decide to separate or divorce. Not surprisingly, those involved have many questions concerning not just their rights, but also what is in the best interest of any children involved.

In this section, we will look at some of the frequently asked questions that arise and also where the law stands on some of these issues.

What is parental responsibility and what does it mean for those involved?

By law, a parent has certain responsibilities and authority for a child, including rights, duties and powers. Parental responsibility is an encompassing term used to describe this in relation to the child and their estate. It means that as a parent you are responsible for:
  • Naming the child
  • Ensuring the child is protected
  • Cared for and maintained.
Logically, this means that you are also responsible for:
  • Making sure the child gets an education
  • Choosing the schools he or she attends and
  • Making sure they are attended to when they need medical assistance.
  • It also extends to disciplining the child too.
This responsibility comes to an end when the child reaches 18 years of age.

Who has parental responsibility?

The mother who gave birth to the child automatically has parental responsibility for the child. Who else has parental responsibility depends on the status of the relationship between the parents. If the father of the child is married to the mother of the child at the time of birth, then he too has parental responsibility. If the father of the child was not married to the mother of the child, but was named on the birth certificate for births after December 1 2003, then he too has parental responsibility. This means that if the father was not married to the mother and also not named on the birth certificate, then he does not have parental responsibility for the child. Some people think that just because they were the father, it automatically gives them rights to the child, it does not. However, this can be challenged and responsibility gained.

I am the father, how can I get parental responsibility for my child if I don’t have it?

Probably the most beneficial way to achieving this is to reach a voluntary agreement with the mother - called a Parental Responsibility Agreement. The alternative, is to make an application to the Courts to obtain a Parental Responsibility Order.

What is a parental responsibility order and what does it mean?

If you do not have automatic responsibility for a child, you can apply to the course to be granted the responsibility through a Parental Responsibility Order. This affords you the rights of a parent, meaning that you have a say in the child’s welfare, schooling and upbringing.

If my partner and I separate, does there need to be a formal agreement about our children?

In short, no. Legal recourse or formal arrangements are really only a last resort used when partners can’t agree. In the eyes of the law, it is hoped that the two parents can work things out to the benefit of the child.

What is family mediation and how does it work?

There are times in disputes where neither side can make progress. Just as in a TV debate, there’s a need for a moderator, or in this case, somebody to act in a way to help facilitate a more constructive discussion. Family mediators act as an impartial facilitator, to help partners talk through their differences. They do not judge or offer advice.

When a contact dispute ends up in court, does the court favour the mother?

Both legal parents are treated equally, so no. Depending on how long the child has spent with one of the parents, for instance, where one parent has been the main carer for the child, this  maybe taken into account. However, where very young children or babies are concerned, the court may favour the mothers care for the short term.

How do I get access to my children?

With tensions running high in divorce or separation cases, one parent may find it difficult to access their child. In this case Foys would suggest mediation. However, failing that, we’d look to gaining a court order.

What is shared care/shared parenting?

It is a misconception that the children of separated parents must spend equal time with each parent. The law in England presumes that:
  1. Both parents take an active role in the child’s upbringing, even on a daily basis
  2. The child should spend ‘significant’ amounts of time with each parent, that doesn’t mean it needs to be equal though. Also, this applies only to the degree that it is safe to do so.

What is a parenting plan?

Some separated or divorced parents find it useful to have a plan, called a parenting plan, that defines the arrangements between the two parents. The document will set out any agreed principles for co-parenting and necessary arrangements to facilitate the child’s needs.  A template for such a parenting plan has been provided by the Children and Family Court Advisory and Support Service (Cafcass). It can be found here. If the relationship between the two parents is difficult, family mediation is an option and may be a route to working through the details of the plan.

What is a Child Arrangements Order

The legal system no longer refers to one or other parents gaining ‘custody’ over a child. Parents can enter into arrangements that determine who the child lives with or who the child spends most of their time with. These were previously know as access, contact for resident orders. Child arrangements extend beyond basic contact arrangements. They refer to any communication or meeting with the child and family members, including via phone, regular mail or email. Child arrangement orders set out contact details between the parents. It will require that the person with whom the child lives or stays with to allow the other person named on the order to visit or the child to visit or stay with them. It may also specify how the other named person can spend time with the child if they cannot visit or have the child stay with them. Sometimes the child arrangements order may be made in favour of somebody who is not a parent or guardian of the child involved. The person named will have parental responsibility for the child while the arrangement order remains in force.

Can I stop my former partner introducing my children to their new partner?

The key thing to consider here is what is in the best interests of the children. When relationships first break down, it can be a very traumatic time for any children involved. Introducing them to new faces too early can add to that trauma and make relationships in the future difficult. At some point, the children involved will likely have to meet your ex-partner’s new partner. Your ex is still the children’s parent, so no matter how you feel about the relationships, this shouldn’t jeopardise the relationship your children can have with your ex partner and their family. Do what is right for the children.

I’m concerned for my children when cared for by my ex-partner, what can I do?

The key thing here is to be objective in your concerns. Why do you feel that your ex-partner caring for your children is a problem?  Are there specific safety issues you’re worried about. If the latter is the case, then it’s best to discuss your concerns with your ex. If you feel there are more serious concerns for the welfare of the child or that they may come to harm, you should take legal advice. Further, if you feel that the safety or emotional welfare of your child is at risk, you should contact Children’s Services as soon as possible department of the local authority. If you are unhappy with the current arrangements and feel that your child would better be cared for by you if you’re not currently caring for the child, or in an alternate fashion, you should contact Foys for legal advice and we can look at making the appropriate applications to the court.

My partner won’t let me see my child – what should I do?

Whatever arrangements you have in place, if you are prevented from seeing or contacting your child, you should first contact Foys Family Solicitors, so we can assess your particular legal situation. It is important to establish what has occurred is previously established arrangements  have broken down. This may require mediation or if the matter cannot be resolved this way, by taking appropriate steps through the courts. We would recommend not inflaming this situation in anyway and instead try to remain in contact through passive means, such as mail, email, phone calls and social media. Be aware that if you have parental responsibility, you are entitled to be kept up to date on your child’s welfare and school performance. This being the case, you can contact your doctor and school for the latest information. 

What can I do if my partner isn’t paying the child maintenance he/she agreed to?

As with any dispute, it is always better to try and resolve the matter between yourselves first, to ensure there are no simple misunderstandings or grievances that can be resolved through discussion. Voluntary arrangements are far better that agency or court mandated ones. If you cannot come to an arrangement, the child’s needs come first and either of the parents can contact the Child Maintenance Service for assistance. Their website can be found here.

My ex-partner looks after our children and now wants to move away, what are my rights?

In this day and age, people have become highly mobile and so it’s not unlikely that such a situation could arise.  In the first instance, you should discuss the impact of this on your children. For instance, interruption of the children’s schooling and whereabouts in the country they intend to live are factors to consider. Also, consideration should be made as to wether is it acceptable for the children to be moved to a different jurisdiction (country).  These issues can be determined by a specialist application under the Children Act 1989.  If you are in any doubt as to your next steps or are concerned that this situation may escalate beyond your control, take action immediately and contact a member of our Family Law team for an initial consultation.

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