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How the Family Court makes Orders

Show notes

In the first episode, Fiona Turner discusses how the Family Court goes about deciding what Order to make when there is a dispute or concern about a child and an application has been made to the court for an outcome.


Welcome to Weightmans. I'm Fiona Turner, a Partner in our national team of family law solicitors. We're here to help you. This is one of a series of podcasts that Weightmans are producing for parents to help them to resolve disputes about their children on or after relationship breakdown.

Today we're looking at how the court goes about deciding what Order to make when there is a dispute or concern about a child. We are presupposing that an application has already been made to the courts for an outcome.

When deciding whether to make an Order, the child's welfare will always be the court's paramount concern. This is called the welfare principle. In each case, the court will undertake a detailed review of what is in the child's best interests.

The court applies a checklist of factors taken into account which is found in Section 1 of the Children Act 1989. These include the wishes and feelings of the child; their physical, emotional and educational needs; the likely effects on the child of any change in circumstances; the child's age, sex, background and any other relevant characteristics; any harm that the child has suffered or is at risk of suffering and how capable the adults involved are of meeting the child's needs.

If you're thinking of making a move to live abroad with a child, sometimes called to leave to remove case or if you're concerned that your ex-partner is considering doing so, early advice is recommended.

Likewise, if you're planning to move a distance away from your child's other parent within England and Wales or elsewhere in the UK, such cases are complex and can require careful planning. Please visit Weightmans website for a short video which explains more about the issues you need to consider if this situation applies to you.

If your child's other parent objects, you will need to make an application to the court for permission to move. The court's decision is determined by your child's best interests.

There are specific considerations that the court will take into account in such cases and the court will expect detailed proposals which are reasonable and have a genuine motivation.

The court considers the effects on both parents of the decision to allow or refuse the move, the effect on the child and the potential reduction in the time that they would be able to spend with the parent who was left behind. The court will also consider what proposals have been made or how feasible it is for this contact to be maintained.

Whether you're the parent wishing to move or the one potentially being left behind, it is important to recognise that a move will have a profound effect on both you and your child and that your case needs to be dealt with sensitively yet robustly in order to achieve the best possible outcome.

Another common question is whether a parent needs permission to take a child on holiday. Separated parents are often unaware that they may be required to obtain the permission of the other parent in order to take a child out of the country ie anywhere other than England and Wales, even for a holiday.

The legal requirements for obtaining permission will vary depending on whether a Child Arrangements Order has been made. The legal starting point is to consider who has parental responsibility. If both parents have parental responsibility and there is no Child Arrangements 'Lives With' Order in place (previously known as a Residence Order), then neither parent can take a child out of the jurisdiction without the written consent of the other parent and any other party who has parental responsibility.

If they do not have that consent, they need an order of the court and this rule applies whether or not parents are separated. However, if there is a Child Arrangements Order in place which specifies with whom the child is to live (known as a resident parent), the resident parent does not require the written consent of the non-resident parent to take the child out of the UK for a period of up to 28 days provided that this doesn't interrupt any arrangements that the child may have to see the other, non-resident parent.

If a parent is unable to agree matters with the other parent or parties with parental responsibility, it may be necessary to apply to the court for a Specific Issue Order, requesting the court to grant permission to travel outside of the jurisdiction with the child.

Alternatively, if a parent who has refused consent worries that the other parent will take steps to remove the child from the jurisdiction, an application can be made to the court for a Prohibited Steps Order which would prevent the child from being taken out of the jurisdiction by the other parent. Again, when making any decision about a child, the court's primary consideration is the welfare of that child and their best interests.

Many parents also ask us if they can change their child's surname. Where a Child Arrangements Order is in force, no party can change a child's surname without the written consent of everyone who has parental responsibility. If there is no Child Arrangements Order in place, a parent can object to the change and applications brought to determine the issue by way of a Prohibited Steps Order or a Specific Issue Order.

Parents considering a change of surname or objecting to a proposed change should seek expert advice and guidance as this can be a very complex area of the law.

Thank you for listening. If I or any of my colleagues in Weightmans' family law team can help further, please get in touch. You'll find our details at the end of this podcast.

When you need support with a family dispute, we'll always look to resolve it sensitively yet robustly through constructive communication.

We will always help you to search for solutions which reduce conflicts and costs, whether your case requires complex litigation or a non-court-based approach.