Disputes involving children can be difficult and stressful, both for parents and for the children involved. Our child law solicitors have extensive experience in resolving these issues sensitively and constructively.
We also provide expert advice for parents and those starting a family together.
Families created by non-traditional routes, such as assisted reproduction, donor conception or surrogacy, can result in uncertainty about the legal position for those involved in so far as their legal status to the child is concerned. It is important that if you are planning to start a family via an alternative route, you seek expert advice prior to conception. Our top family lawyers have the in-depth expertise to guide you through these issues.
Adoption is a legal process to make someone a child’s parent. It may be required as a process if a party wishes to adopt a step-child, or alternatively, if the child was conceived through assisted reproduction and the law fails to recognise one party as a legal parent.
Disputes about with which parent children should live and how they spend time with their other parent are not limited to the time of a relationship breakdown. Difficulties can occur at any point until your children become adults.
Our child law solicitors are experts when it comes to handling legal cases regarding children, including their living arrangements in the event of a divorce, dissolution or separation.
Central to all these disputes are the children themselves.
Co-operation between parents and a willingness to put the children's needs first will minimise the impact of separation on them. We can help you consider non-court-based options for finding solutions, such as mediation or collaborative law, or court-based litigation.
Constructive advice at an early stage can be invaluable, particularly if matters are complex and involve allegations of abuse or violence.
Our experience in representing Local Authorities in cases with social services involvement provides additional insight and strategic advice to help you navigate difficult or complex situations where allegations of harm or abuse are raised.
In every case, we can help you to reach a solution that's in the best interests of your children.
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Our child law solicitors advise on applications for child maintenance and assist in negotiations to reach child maintenance agreements on divorce/dissolution or separation.
However you choose to start your family, it is important to understand the legal implications.
When couples or single people join together to start a family — 'co-parenting' — whether it be by way of surrogacy, assisted reproduction or adoption, we can advise on the legal status of co-parents and who will have (or may acquire) parental responsibility for any child, as well as the legal applications that may need to be made.
A co-parenting agreement sets out who is going to play a role in the child’s life, and outlines expectations as to how the child will be raised and the extent of each person’s involvement.
Each agreement is bespoke and should be drafted to reflect the intentions of the individuals involved.
A co-parenting agreement can be of value to anyone who has decided to create a family but can be especially useful for those planning to start a family from a non-traditional route such as fertility treatment.
Creating a family and parenthood
Most parents will automatically be the legal parents of their child and will also have parental responsibility. It is however possible to be a legal parent without parental responsibility, and conversely for someone to have parental responsibility but not be the legal parent.
There are strict rules governing who will be considered the legal parents of the child and who will have parental responsibility. Even if parents agree to something different, they will not be able to autonomously override the legal position. We can explain the legal implications of your plans and advise on any steps you can take to ensure that the legal status of the parents mirrors your wishes and intentions upon birth or subsequently.
Unfortunately, disputes can arise at any stage for families and those intending to create a family, both pre-conception, pre-birth and subsequently, and expert advice may be needed. We can help with any related issues.
In cases concerning arrangements for children, it is very common for factual disputes between the parties to arise. The court must be very careful to consider allegations, which if true, would impact the welfare of the child or children concerned.
Where the court is satisfied that the allegations, if true, will impact the welfare of the child, the court will order a separate hearing, known as a Fact Finding Hearing, to consider the evidence about the allegations. Having considered the evidence the court will make findings in writing. We can guide you through this process.
Separate from child welfare issues are financial claims relating to children. You may need advice on applications for child maintenance and assistance in negotiations to reach child maintenance agreements on divorce/dissolution or separation.
Applying English law, we also advise on making applications under Schedule 1 Children Act 1989, which may include property settlement, lump sum claims and school fees orders. Schedule 1 claims on behalf of children can be critical for unmarried parents or former cohabitants for whom divorce settlement remedies are not available. As well as representing parents, we act for children themselves in seeking financial assistance, for example, maintenance for their university education.
In Scotland, child maintenance is known as “aliment” and is governed by different rules and legislation. We can advise on making an application to the court under the Family Law (Scotland) Act 1985 for aliment and Interim aliment as well as orders in respect of school fees. We can also advise cohabitants on seeking Capital sum payments in respect of children under the Family Law (Scotland) Act 2006.
A grandparent has no automatic legal 'right' to see their grandchildren. However, if you have been unable to agree on arrangements to see your grandchildren with either of their parents, it is possible to apply to the court for help.
We have experience in successfully representing grandparents applying to court, whether for a child arrangements order (called a parental rights order in Scotland) or special guardianship. We can help grandparents, and other members of the extended family, explore their options.
If parents cannot agree on arrangements to take their children on holiday, it is important to check out the legal implications of going away, or blocking a holiday, particularly abroad or out of the jurisdiction. We can help you explore the options and consider court applications, whether for a specific issue order or prohibited steps order. Sometimes urgent applications are required and we can deal with that with you. Even if a holiday is by agreement, a letter of consent, or other formal legal documentation, might be required by the relevant immigration authorities.
International and expatriate families
Children disputes involving parties from different countries, whether nationals or expatriates, and whether living in the UK or elsewhere, can have added complexity and needs specialist advice. We can help with international family law disputes.
Legal parenthood establishes a lifelong parent/child connection. It affects who is financially responsible for the child and whether the child can inherit their assets. It also affects the child’s nationality, and whether someone can issue a court application to determine an issue concerning the child without the need for leave (permission) of the court.
It is important to establish who is a legal parent and if required, take steps to seek a parental order or adoption order to secure parenthood for parents who are not automatically legal parents.
Parents may disagree about issues regarding their child’s sexual orientation or gender identity. We can advise on issues of gender dysphoria and family disputes where either a child identifies as transgender, or a parent has transitioned. We will help you to explore options. Court applications may be required.
Moving abroad or relocating with your children
If you're thinking of making a move to live abroad with a child (sometimes called 'leave to remove' cases) or are concerned that your ex-partner is considering doing so, early advice is recommended. Likewise, if you are planning to move a distance away from your child's other parent within England and Wales, or elsewhere in the UK. Such cases can be complex, and require careful planning. We have extensive experience of both succeeding in, and defending, these cases.
Non-return of children
Often parents are unaware that they can be accused of committing child abduction of their own children.
Parents, and anyone with parental responsibility, have a right to be consulted about their child being taken abroad. If one parent takes a child abroad without the permission of the other parent, this is known as a wrongful removal and is considered to be child abduction.
If you had permission to take a child abroad for a period of time for a holiday or to visit family, but overstayed that period, retaining the child abroad at the end of the agreed period, this is known as a wrongful retention and also considered to be child abduction.
We can advise you if you are worried about the risk of, or non-return of your children or if you may be accused of child abduction.
We advise on issues of parental responsibility (in Scotland, parental rights and responsibility) including drafting parental responsibility agreements, and dealing with difficulties when they arise in exercising that responsibility.
In practical terms, a person with parental responsibility should have a say in major decisions affecting their child, including, for example, the choice of school, religious upbringing, whether they should receive medical treatment.
Establishing who holds parental responsibility, or who should hold parental responsibility, can be complex depending on the circumstances regarding the child’s conception. We can help you work out whether you or your partner has parental responsibility, the likelihood of obtaining it through a variety of means, and the effect it will have on your family.
The position for step parents is different from that of parents, grandparents or adoptive parents. Different rules apply to the manner in which they can acquire parental responsibility and other orders affecting the child such as child arrangement orders. The options available will depend on the specific circumstances and early advice is recommended.
Similarly, the financial obligations of a step parent towards a child differ from those of its parents and will depend on a number of factors including whether the child was treated as a child of the family during the marriage. We can advise on this and other issues affecting step parents and the children of step parents.
Surrogacy plays an important role in modern society. It helps to create much-wanted families in a world where attitudes and lifestyles are increasingly diverse. More and more people, including LGBTQ+ couples, are turning to surrogacy as this is often the only option available for those who wish to have a genetic link to their child.
Surrogacy arrangements may be made in UK or abroad, which in turn can result in added complexity and issues to be considered. Our experts can advise you at any stage, but we recommend that advice is sought prior to putting arrangements in hand so that you can consider matters fully before embarking on the surrogacy process,
Surrogacy and immigration
If surrogacy takes place abroad, the intended parent(s) need to give thought to how they will bring the baby back to the UK and are strongly advised to seek advice from an immigration specialist, not only in the UK, but also in the country where the surrogate resides.
Surrogacy and parental orders
A parental order is a court order which transfers legal parentage from the surrogate mother (and her spouse/civil partner) to the person or persons who are going to bring up the child. This has the effect of extinguishing the status of the surrogate mother and her spouse/civil partner and ensures that the legal position reflects the reality on the ground. Once a parental order has been made, the birth certificate will be reissued naming the intended parents as the child’s parents.
Regardless of whether the surrogate is based in the UK or overseas, the intended parents will need to obtain a parental order, as without one they will not be the child’s legal parent in the UK.
An application for a parental order must be made six weeks after the child is born, but before the child is six months old.
Our child law solicitors offer a free 30 minute consultation on matters concerning children.
Under English law, parental responsibility is defined as "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property".
In practical terms, it gives the parent responsibility for taking all the important decisions in a child's life such as education, religion and medical care as well as day to day decisions, for example in relation to nutrition, recreation and outings.
Married parents have joint parental responsibility. However, if you are not married, only the mother automatically has parental responsibility. An unmarried father can, however, obtain parental responsibility in a number of ways, the most common of which is being named on the child's birth certificate (for children born after 1 December 2003).
Families created by non-traditional routes, such as assisted reproduction, donor conception, surrogacy, often by LGBTQ+ couples, can result in uncertainty about the legal position for those involved, in so far as their legal status to the child is concerned. There are strict rules governing who will be considered the legal parents of the child and who will have parental responsibility. Expert advice should be taken to ascertain your position and any options available to you.
In Scotland, the legislation in respect of parental rights and responsibilities is different from England. Rights and responsibilities are regulated by the Children (Scotland) Act 1995 and the amendments which were made to that by the Family Law (Scotland) Act 2006 which gave unmarried fathers the same parental rights and responsibilities as the mother.
"Parental responsibilities" are defined in section 1 of the 1995 Act as follows:
to safeguard and promote a child's health, development and welfare;
to provide in a manner appropriate to the stage of development of the child direction and guidance to the child;
if the child is not living with the parent, to maintain personal relations and direct contact with a child on a regular basis; and
to act as a child's legal representative.
"Parental rights" are set out in section 2 of the Act and are as follows:
to have a child living with him or her or otherwise regulate the child's residence;
to control, direct or guide in a manner appropriate to the stage of development of the child, the child's upbringing;
if the child is not living with him or her, to maintain personal relations and direct contact with the child on a regular basis; and
to act as the child's legal representative.
Married parents have joint parental rights and responsibilities. However, if you are not married, only the mother automatically has parental rights and responsibilities unless the father is named on the child's birth certificate.
Often it is possible to reach agreement in respect of your children such as where they will live, what time should be spent with each parent and the level of child maintenance which should be paid.
Court orders are not generally necessary to reflect agreements that have been reached, but can be useful for certainty and can be obtained by consent.
A mutual agreement has the best prospects of success and will cause the least disruption to the children. The mediation process can help to reach that agreement. Keeping the lines of communication open with the other parent and involving them in any decision-making process can often lead to an agreement that suits all concerned.
If agreement cannot be reached for whatever reason, we will advise you on the potential for a referral to mediation and your options in respect of a court application so that you can make a fully informed decision as to whether this process is in your child's best interests.
You will need to complete an application form setting out what order you wish to apply for and brief details of the issues. You will have to pay a court fee. Once the application is issued by the court, it will have to be served on the other parent/party so that they know about the court hearing and the application that you have made.
If your case is urgent, we will advise you to make an emergency application to the court. Urgent applications can be made, and the court will determine the degree of urgency and how quickly to list a first hearing.
Cafcass will undertake safeguarding checks with the relevant agencies before the first court hearing which is called a First Hearing Dispute Resolution Appointment (FHDRA). You will need to attend that hearing personally with your legal representative.
At this hearing, the judge and a Cafcass officer will consider your case and try to assist you in reaching a compromise. If this is not successful, the judge will consider what further information is required in order to reach a solution and may order you to prepare a statement setting out your case or that the Cafcass officer visits you and your children in order to prepare a report on what might be the best outcome for the child.
The court may also require additional expert evidence such as a psychologist's report or a drug or alcohol test depending on the individual circumstances of the case.
Once all the information has been obtained, we will guide you as to what happens next and what view the judge is likely to take. A dispute resolution hearing will be listed by the court to consider the case.
If agreement is still not possible, another court hearing will be listed. The judge will make a decision at the final hearing, usually after hearing evidence from all concerned.
You will need to raise an action by way of initial writ seeking such orders you deem necessary in the best interest of your child. A court fee will have to be paid to the court.
The court will warrant the writ for service on the other parent/party so that they know about the court hearing and they will have 21 days to respond.
If you need to seek an urgent order the court can fix an earlier hearing. Otherwise, when the other parent/party has notified the court that the intent to defend the action, the court will fix a child welfare hearing.
Both parties attend the hearing and the court will try to expeditiously resolve matters if they can. The court may appoint an expert report to be prepared into the background of the case to assist the judge in deciding matters. The court may make interim arrangements and continue the hearing to monitor those arrangements. Sometimes the case may be continued several times.
There is no CAFCASS service in Scotland to assist in monitoring and facilitating the arrangements for care. If there are further difficulties or the parties cannot agree on arrangements, the court may fix an evidential hearing before making a final decision.
This is only a requirement in England and Wales, not Scotland.
Before a court application can be made, save in urgent situations, you must attend a Mediation Information and Assessment Meeting, a 'MIAM'. This is to explore first whether mediation can assist in your circumstances, and if appropriate, the parent(s) of the children may be prepared to attend mediation to try to reach an amicable agreement.
The most common orders are Child Arrangements Orders. These are often a 'lives with' order (sometimes called 'custody' or 'residence'), 'time spent with' order (sometimes called 'access' or 'contact'), a prohibited steps order or a specific issue order. All of these orders will usually last until your child is aged 16.
Other orders may relate to child relocation, whether within the jurisdiction or moving abroad, parental responsibility, special guardianship, child abduction and/or financial provision for children.
In Scotland, the court can make an order granting or restricting parental rights and responsibilities; for contact; residence; and specific issue orders, for example, which school the child should attend.
The court can also make interim orders and protective orders. For example, to interdict the removal of a child from one parent's care or out of the jurisdiction.
In deciding whether to make an order, the child's welfare will always be the court’s paramount concern and in each case, the court will undertake a detailed review of what is in the child's best interests. The court will apply a checklist of factors to be taken into account and it is therefore of vital importance that your case is presented in a way which addresses each of these points.
The court will consider the wishes and feelings of the child, their 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 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.
A child arrangements order specifies with whom a child should live (a 'lives with' order) and the time they will spend with the non-resident parent (a 'spends time with' order). Child arrangements orders have replaced custody, access, residence and contact orders.
A child arrangements order can specify that a child lives with one or both parents (formerly known as shared residence or joint custody) or with a third party, such as a grandparent, depending on the child's circumstances.
If the court considers that your child should live with both parents, the order can specify the periods during which your child is to live in the different households involved and it is not therefore necessarily the case that your child will divide their time equally between their parents.
A child arrangements order will usually include a requirement for the person with whom the child lives to make the child available to visit or stay with the other parent or person named in the order. A child arrangements order can, therefore, be made in favour of a non-resident absent parent or a third party such as a grandparent or other relative. For certain people, it may be necessary to first obtain the permission of the court to make an application.
In addition to specifying the time a child will spend with its non-resident parent, a child arrangements order can also cover indirect contact by letter, electronic media such as Skype, Facetime, WhatsApp or by telephone.
The frequency of contact can also be recorded in the order and can be specific in terms of, for example, weekends or holidays. It can also be more general, allowing parents flexibility to make their own arrangements within a general framework. The court may determine where the time spent with the child takes place and whether it is to be supervised.
Any party with whom a child arrangements order specifies that the child lives (which can be both parties) can remove the child from England and Wales for a period of up to 28 days without the written consent of the other. Any other removal from the jurisdiction will be unlawful without the written consent of the other parent or a court order.
A contact order specifies who a child should have contact with.
A residence order specifies who the child should reside with.
Neither order specifically removes a parent’s parental rights and responsibilities but in practice, the parent with residence will be able to determine the child's normal day to day arrangements as long as it does not conflict with any contact order or specific issue order. A shared residence arrangement is possible but will need to specify when exactly the child should be with one parent and the other to avoid disagreement.
Any of these orders can be made in favour of either parent or a third party such as a grandparent or other relative if it is in the best interests of the child.
A contact order can specify the time that the child will spend with its non-resident parent but also can cover indirect contact by letter, electronic media such as Skype, FaceTime, WhatsApp or by telephone.
In certain situations, if the child may be at risk, the contact order can also specify that the contact should be supervised.
The order may also allow for holidays abroad. Otherwise, neither party is allowed to take the child out with the UK without the other's consent.
This type of order can be used to prevent one parent from taking certain action without the other parent's consent and as such deals with a specific problem that has arisen. A common use of this order is to prevent one parent from taking a child abroad, taking a child out of school or to prevent a change of surname.
This type of order allows the court to make a decision on a disputed point such as what school a child should attend, whether a child should be known by a particular name, have a particular operation or what religion a child should adopt.
When 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 a factual dispute arises that, if true, would impact on the welfare of the child or children concerned, the court will order a separate fact finding hearing to determine that particular issue.
A fact finding hearing may be necessary if the following allegations have been made:
Alcohol or drug abuse;
Physical or sexual abuse;
Verbal or emotional abuse;
Repeated non-compliance with previous court orders.
The decision to direct a fact finding hearing is a judicial decision, not one for the CAFCASS officer or for the parties. However, in considering whether to direct a fact finding hearing, the court will consider the views of the parties and of CAFCASS.
Although a fact finding hearing may delay the case, and mean that additional time is spent at court ( in some cases many additional days), the early resolution of whether relevant allegations are found to be true by the Court, enables the substantive hearing to proceed more quickly, and enables the Court to focus on the child’s welfare with greater clarity.
If you wish to move to live outside of the jurisdiction of England and Wales or move a significant distance within the jurisdiction with your child (so as to create difficulty for your ex-partner to maintain their current contact pattern) and your child's other parent objects, you will need to make an application to the court for permission to move. The court's decision will be 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 will also consider the effect on both parents of the decision to allow or refuse the move, the effect on the child and the potential reduction in the time they would be able to spend with the parent who was left behind and what proposals have been made or how feasible it is for this contact to be maintained.
Whether you are the parent wishing to move or the one potentially being left behind, these will have a profound effect on both you and your child and need to be dealt with sensitively yet robustly in order to achieve the best possible outcome.
Within the United Kingdom, there are specific legislative rules providing which court should be able to act in respect of the case. We will be able to advise you as to which court and jurisdiction would have authority to deal with your case in either jurisdiction.
Separated parents are often unaware that they may be required to obtain permission from the other parent in order to take a child out of the country (i.e. anywhere other than the United Kingdom). The legal requirements for obtaining permission will vary in accordance with what child arrangements order has been made, if any.
The legal starting point is to consider who has parental responsibility. If both parents have parental responsibility and there is no child arrangements order — 'lives with' (previously known as a residence order) in place, then neither parent can take a child outside of the UK without the written consent of the other parent (and any other party with parental responsibility) or an order of the court. This rule applies whether or not parents are separated.
In England and Wales, if there is a child arrangements order in place which specifies who the child is to live with (the resident parent), then the resident parent does not require the written consent of the non-resident parent to take the child outside the UK for a period of up to 28 days, providing that this does not interrupt any contact arrangements that the child may have with the non-resident parent. This specific rule does not apply in Scotland.
If a parent is unable to agree on 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 a child. Alternatively, if a parent who has refused consent fears that the other parent will still take steps to remove the child from the UK, an application to the court for a prohibited steps order to prevent the child from being taken out of the UK by the other parent may be required.
When making any decision about a child, the court's primary consideration is the welfare of that child and their best interests.
Often parents are unaware that they can be accused of committing child abduction of their own children.
Parents, and anyone with parental responsibility, have a right to be consulted about their child being taken abroad. If one parent takes a child abroad without the permission of the other parent, this is known as a wrongful removal. It is considered to be child abduction.
If you had permission to take a child abroad for a period of time for a holiday or to visit family, but overstayed that period, retaining the child abroad at the end of the agreed period is known as a wrongful retention. This is also considered to be child abduction.
Threats by one parent to remove a child to another country should be treated seriously in all circumstances. You should speak to a solicitor urgently.
There are a number of things you can do to minimise the risk of a parent removing a child.
Keep the child’s passport in a secure place. If you cannot agree on a place, consider placing with a third party or a solicitor.
Keep a detailed description of the child to hand. This should include hair colour, eye colour, weight height and any distinguishing features. You should keep this with an up to date photograph of the child and copies of their identity documents. This would help a solicitor act more quickly when tracing a child.
Make sure you or someone known to the child always collects from nursery or school and other hand over arrangements with the other parent are strictly adhered to.
Keep urgent telephone numbers to hand such as your solicitor and the police.
Insist that the other parent provides their passport or ID documents to you during visits with the child.
Tell others about your concerns about an abduction so they are aware of potential problems.
If your child understands the situation surrounding the separated family, speak to them and advise they be very cautious and ask for help if taken away by the other parent.
Tell the child and whoever is looking after the child, such as school, who will be collecting the child.
Visit the Reunite website and obtain the fingerprinting form provided by them.
Obtain a Court Order to prevent this. Seek urgent advice from a solicitor.
The UK consists of different countries and different laws. You should seek advice from a specialist family lawyer in the country in which your child has been taken and who has experience in international family disputes and who can guide you accordingly. These types of case are highly specialist and require family lawyers to act quickly, to achieve the best outcome for you and your family.
Again you should seek advice from a specialist family lawyer who has experience in international family disputes. It is highly likely that your solicitor will need to liaise with another international family lawyer in the country in which the child has been abducted to.
Stay calm and contact an experienced specialist family lawyer immediately. We can help. A specialist will help guide you through the validity of any accusations and be able to consider any defences that may be available to you.
When 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 specific issue order.
Parents considering a change of surname, or objecting to a proposed change, should seek expert advice and guidance as this is a complex aspect of the law.
Financial support for your children is governed by the Child Support Agency for their maintenance claims.
If you are married, your children's property and financial needs are usually dealt with in a financial remedy application on divorce, by consent or by court application if necessary.
If you are unmarried, your children's needs including property, lump sums and school fees, can be addressed in a Schedule 1 Children Act application in England and Wales. In Scotland, this can be addressed in an aliment action or action under the cohabitant legislation.
When a couple separates, the absent parent will be required to pay child support in accordance with Child Support Agency (CSA) guidelines. You may wish to consider whether you are able to reach agreement in respect of this or whether an application to the CSA is necessary. We will advise you on your options and what you might expect to pay or receive for your child depending on your circumstances.
In England and Wales, if your income exceeds a limit specified by the CSA, it is possible for a further claim to be made against you for 'top up maintenance' under Schedule 1 Children Act 1989. In addition, claims can be made under Schedule 1 for property and lump sums, to secure a home for your child and the parent with care to live in.
In Scotland, an application can be made for a 'top up' under the Family Law (Scotland ) Act 1985. If parties have been cohabiting and have separated, an order for a lump sum could also be sought under the Family Law (Scotland) Act 2006.
A grandparent has no automatic legal 'right' to see their grandchildren.
If you cannot reach an agreement with the parents of your grandchildren, you may be able to ask the court to assist in making arrangements. Usually, and in England and Wales, you will need the permission ('leave') of the court first to make an application and if successful, the court would then consider the main application.
In Scotland, you can apply for parental rights, or a contact or residence order directly in the same way a parent might.
In England and Wales, if mediation is unsuccessful, and/or the parents are not prepared to engage, as a grandparent you first have to obtain the 'leave', or permission of the court, before progressing your application for a child arrangements order to spend time with your grandchildren.
The court will normally address the issue of 'leave' at the first hearing, whether dealt with by consent or by order of the court. Whether or not that leave is granted will depend on a number of factors, including the nature of the application, the grandparent's connection to the child, and the risk to the child that granting the substantive application would disrupt their life to the extent that they would be harmed by it.
Assuming that the court has given permission ('leave') for such an application to be made, the judge will then apply the Children Act 1989 'welfare checklist' to make their decision, taking into account, for example, the age of the child, their wishes and feelings and any harm the child may be at risk of suffering. The paramount consideration will always be the child's welfare.
The court will likely require all the concerned parties to file statements and may instruct Cafcass to speak to the parties and to the children involved (depending on their age and maturity) so that they can report to the court on whether it is in the children's best interests to spend time with the grandparent, and on the frequency and nature that contact may take.
Often, agreement can be reached between the parties either at court or through negotiations, but if not, the court will hear evidence and impose a final order.
In Scotland, when making any decision, the court will consider the welfare of the child as paramount. They will consider if the order sought by the grandparent is in the best interests of the child. The court will consider all of the circumstances of the case. The court will consider the wishes of the child and how any proposed order will affect the existing arrangements for care and the relationship the child already has with their parents. The Court will only make an order if it believes it is necessary and in the best interests of the child.
In England and Wales, there are certain circumstances where a grandparent does not need the court's permission ('leave') to apply for a child arrangements order. These include where the grandparent already has a 'lives with' or 'residence order' in respect of the child, or for example, the child has been living with the grandparent for more than three years.
A special guardianship order is an order appointing one or more individuals to be a child's 'special guardian'. It is intended for those children who cannot live with their birth parents and who would benefit from a legally secure placement.
It is a more secure order than a 'lives with' or 'residence' order because a parent cannot apply to discharge it unless they have the permission of the court to do so. It gives parental responsibility to the applicant which gives them responsibility for day to day decisions relating to a child's care and upbringing. The local authority will be involved in the process, preparing a report for the court's consideration.
Mediation may assist in resolving matters without recourse to the. For more information, visit our mediation page.
Other methods of non-court dispute resolution are also available, including collaborative family law and arbitration.
Collaborative law involves a series of roundtable meetings between clients and their lawyers to reach an agreement on approach and solution to deal with their children on separation. All parties sign a participation agreement, agreeing not to go to court and so encouraging everyone to invest their efforts on reaching a negotiated solution.
Arbitration is a privately funded court process in which the clients agree to appoint an independent lawyer/arbitrator who will hear their case and make a decision which is then enforceable in the Family Court. The process can be tailored to the needs of the clients and is usually much quicker than the usual court process.
For the child in question, and their family, transitioning involves a series of decisions and challenges along the way. Whilst most parents are keen to guide their children and provide them with the emotional support they need during this period, many express concern or confusion as to the best approach.
Separated parents in particular, may find it especially difficult to reach agreement as to the best way forward. This in turn can lead to additional tension and conflict during an already difficult time. Bearing in mind the sensitivity of the topic and the complexities involved, it follows that it is not unusual for the child’s parents to respond very differently to the gender anxieties expressed by their child.
If an issue does arise between the parents which proves incapable of informal resolution, there are a number of ways in which matters can be resolved. These include mediation, seeking to agree matters with support from an exchange of solicitor’s correspondence, arbitration or court proceedings. Each option is not mutually exclusive and it is possible to try more than one method of resolving matters.
In the event that a court application is issued for child arrangements, including an application for prohibited steps (to prevent a certain action being taken) or specific issue application (an application for the court to determine whether an action can be taken), the child’s welfare will be the court’s paramount consideration.
In short, the answer is no. Legal parenthood and parental responsibility are two different legal terms which dictate the rights and responsibilities which a parent or other adult will have in relation to their child/children.
There is no limit on the number of people who can have parental responsibility for a child. This means that parental responsibility is not lost by one individual just because someone else obtains it. Parental responsibility is then shared between the adults concerned.
No. A co-parenting agreement is not legally binding upon the parties. That being said, it is still a good idea to enter into one. Talking through everyone’s expectations can help identify any potential issues/misunderstandings and this will allow the parties an opportunity to resolve any such issues in advance of the birth.
In the event of a dispute, one or more of the co-parents may seek to rely on the agreement reached. If court proceedings are issued, the judge hearing the case may agree to consider the contents of the co-parenting agreement on the basis that it is evidence of the parties’ intentions as at the date when the agreement was entered into. Ultimately, however the judge is not bound by the contents of the agreement and can make a different order. When considering what arrangements are appropriate the welfare of the child will always be the court’s paramount consideration.
Whether the egg donor is the legal parent of the child will depend on their relationship with the birth mother. The birth mother is always the legal mother regardless of whether they are the biological mother.
If the egg donor is the birth mother’s spouse, civil partner, or unmarried partner, it is possible for them to be the second legal parent of the child provided certain formalities are complied with.
Unlike sperm donation, it is only possible to obtain a donor egg from a fertility clinic. It is possible to conceive using a donor egg from either a known or anonymous donor.
Whether or not a sperm donor is a legal parent of a child, and as a consequence financially responsible for that child, will depend on how the child is conceived.
Donation through a UK licensed clinic:
Provided a sperm donor donates sperm through a licensed clinic to unknown recipients, they will not be the legal father of the child and will not have any legal or financial obligation as far as the child is concerned. This means they will not be named on the birth certificate and will not have parental responsibility for the child. Hence, they will not have a say in how the child is raised.
If, however, a sperm donor donates via a UK licensed clinic to someone they know, then things are slightly more complicated. If for example they donate to a same sex female couple who opt to register the non-birth mother as the second legal parent, they will not be the legal father, but if there is no second legal parent then they could be. In this scenario, a lot would depend on the paperwork signed at the clinic and the intentions of the parties concerned.
Conception at home:
If the sperm donor donates through sexual intercourse, then they will always be the legal father of any child conceived and could potentially be liable to pay child support. This rule applies regardless of what the parents agree or what is recorded on the birth certificate.
If donation takes place via artificial insemination to a couple who are married or in a civil partnership the sperm donor will not be the legal parent. Rather it will be the birth mother and their spouse/civil partner (assuming it cannot be shown that the spouse/civil partner did not consent). If, however, the birth mother is not married or there is no second legal parent, then the sperm donor will be the legal parent and again it is not possible for the parents to override the legal position in this regard and agree something different.
At present under UK law the birth mother is always the legal parent. It follows that upon birth, the surrogate will be the child’s legal mother, irrespective of whether the child is born in the UK or overseas.
If the surrogate is married or in a civil partnership, their partner will be the other legal parent even though they will have no biological connection to the child. This rule applies unless the husband, wife or civil partner of the surrogate can show that they did not consent to the conception.
If the surrogate is not married or in a civil partnership, the second legal parent will normally be the intended father (assuming he is the biological father).
Alternatively, if conception takes place at a UK fertility clinic, someone else can be nominated as the second parent such as a non-biological father or an intended mother.
Yes, it is perfectly legal to enter into a surrogacy arrangement in the UK. However any form of commercial surrogacy is illegal. This means that no money, other than “reasonable expenses”, can be paid to the surrogate, unless authorised by a court. A criminal offence will be committed if a third party helps to negotiate or facilitate a surrogacy arrangement for payment, or a surrogate advertises her services.
UK law does not set out a clear definition of what constitutes “reasonable expenses. In the case of Re A, B and C (UK surrogacy expenses) (2016) EWFC 33, Ms Justice Russell DBE referred to a “going rate” of between £8,000 and £15,000 but observed that, “There is no universally acceptable figure to pay for surrogacy expenses in the UK, irrespective of the circumstances in law, whether it is £15,000 or more or less.”
No. As things stand surrogacy agreements are unenforceable in the UK. This is because under English Law, a surrogate cannot be forced via any contractual provision to hand over their baby and likewise the intended parents cannot be forced to pay money to the surrogate or assume responsibility for the child upon birth. It follows that any such written agreement or contract will not be enforceable and a high level of trust needs to exist between the surrogate and the intended parents.
There is value in having a surrogacy agreement, even if it is not enforceable in the UK. Even though disputes rarely arise and in the vast majority of surrogacy arrangements everything goes to plan, it is always a good idea for anyone considering surrogacy to discuss matters in detail with the surrogate and commit any plans to paper so that everyone’s intentions and expectations are clear. That way disappointment, potential conflict and misunderstanding can be avoided.
Regardless of whether the surrogate is based in the UK or overseas, the intended parents will need to obtain a parental order as without one, they will not be the child’s legal parent in the UK. This can lead to all sorts of problems.
An application for a parental order must be made six weeks after the child is born, but before the child is six months old.
The application is made to the parties’ local family court, or the Central Family Court in London if the surrogate is based overseas. Often if the case is straightforward it will be heard in the magistrates’ court, but if the case is complex or there are international issues the case will be referred to a High Court judge.
In accordance with section 54 of the Human Fertilisation and Embryology Act 2008, when considering whether to make a parental order the court will need to satisfy itself that the intended parents meet certain criteria:
Conception must have taken place by artificial insemination or embryo transfer and the child must have been carried by a surrogate.
The intended parent, or if the application is made by a couple, at least one of them must have a genetic link with the child.
Single parents can now apply for a parental order but if the intended parents are applying as a couple they must be married, in a civil partnership or living together in what is deemed as an “enduring family relationship”.
The application needs to be made between 6 weeks and 6 months of the birth.
The child must be living with the intended parents.
As at the date when the application and any order is made, the intended parent must be domiciled in the UK, Channel Islands or Isle of Mann. If there are two intended parents applying as a couple then at least one of them has to be domiciled in the UK, Channel Islands or Isle of Mann.
The intended parents must be over the age of 18.
The surrogate and any spouse/civil partner must freely consent to the order.
The intended parents must not have paid the surrogate more than her reasonable expenses.
Ultimately, the welfare of the child is the paramount consideration of the court and it will only make the parental order if deemed to be in the best interests of the child. Usually, however, providing everyone is happy with the surrogacy arrangement, the court will try to create a legal relationship between the child and the intended parents, otherwise the child would be left in a situation whereby its birth parents do not wish to have parental responsibility or any involvement in the child’s upbringing and the child’s intended family are deprived of legal parenthood and parental responsibility. By and large the court recognises that this would be a most unsatisfactory outcome, but does need to ensure that intended parents meet the above criteria.
Parents are often unaware of the need to apply for a parental order within the first six months of the child’s life. The court recognises that to leave intended parents in limbo without any legal status would be to leave both the parents and the child in a very precarious legal position. It is for this reason that in the past the court has demonstrated a willingness to stretch the rules to accommodate applications brought by intended parents after the six-month window has expired. Hence, whilst the outcome of any application is not guaranteed, it is certainly worth considering making an application for a parental order even if the child is older than 6 months.
Yes. It is widely accepted that the law in this area is ripe for reform. The Law Commission is presently undertaking a review of the law surrounding surrogacy and parental orders and their final report (and a draft bill) is expected in August 2022. It is anticipated that a new pathway will be introduced which will allow intended parents to become the legal parents from birth provided certain requirements are met.