Sensitive legal advice for the issues surrounding disputes involving children.
Disputes about with which parent children should live and how they spend time with their other parent are not just limited to the time of a relationship breakdown. Difficulties can occur at any point until your children become adults.
Our family law team are experts when it comes to handling legal cases regarding children, including their living arrangements in the event of a divorce 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 advise on non court based options for finding solutions, or court based litigation. We liaise with court-appointed experts and advise you on the use of independent experts where appropriate. In every case, we help you to reach a solution that's in the best interests of your children.
We can also provide expert advice regarding plans to move abroad with a child, whether you're thinking of making such a move or are concerned that your ex-partner is considering to do so.
We can advise on applications for child maintenance and assist in negotiations to reach child maintenance agreements on divorce/dissolution or separation.
When couples or single people join together to start a family – 'co-parenting' – 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.
Separate to child welfare issues are financial claims relating to children. We can advise on applications for child maintenance and assist in negotiations to reach child maintenance agreements on divorce/dissolution or separation. We also advise on making applications under Schedule 1 Children Act 1989, which may include a school fees order. As well as representing parents, we act for children themselves in seeking, for example, maintenance for their university education.
A grandparent has no automatic legal “right” to see their grandchildren, however, if you have been unable to agree arrangements to see your grandchildren with either of their parents, it is possible to apply to the court for help. Before an application is made, 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.
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. In reality, those two applications are made together, and 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 his or her life to the extent that he/she would be harmed by it.
If leave is granted, the court will then deal with the substantive application, with the child’s welfare being of paramount importance when considering the application. The court will consider the entire welfare checklist (s1(3) of the Children Act 1989) when considering the application, including:
- The ascertainable wishes and feelings of the child concerned
- The child’s physical, emotional and educational needs
- The likely effect on the child if circumstances changed as a result of the court’s decision
- The child’s age, sex, backgrounds and any other characteristics which will be relevant to the court’s decision
- Any harm the child has suffered or maybe at risk of suffering
- Capability of the child’s parents (or any other person the courts find relevant) at meeting the child’s needs
- The powers available to the court in the given proceedings
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.
We have experience in successfully representing grandparents applying to court. If you would like to explore your options, please contact us to arrange an initial meeting. We offer 30 minutes free of charge.
We can advise on issues of parental responsibility including drafting parental responsibility agreements and difficulties that arise in exercising that responsibility. These can include issues over schooling, religious upbringing and your child's health. You can rest assured that we deal with these matters sensitively and pragmatically, with a view to obtaining the best outcome with the least upset to all concerned.
We can help you to fully understand the complicated legal position involved in taking the step of surrogacy, especially if there is a foreign surrogacy arrangement.
We offer a free 30 minute consultation on matters concerning children.
Frequently asked questions
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What is parental responsibility?
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).
We can provide expert advice and 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.
How can I reach an agreement with the other parent?
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. Our expert family law solicitors recognise that a mutual agreement has the best prospects of success and will cause the least disruption to the children. We can advise on the best way to reach such an agreement in difficult circumstances. 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 we cannot reach an agreement what can I do?
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. Our expert team will discuss with you the likely outcome and how long the application is likely to take. This means you can make a fully informed decision as to whether this process is in your child's best interests.
How does the court process work?
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.
Once an application is made, the court will arrange a first hearing 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 court welfare 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 court welfare office 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, our expert team can provide support and guidance as to what to expect at each stage of the proceedings, what view the Judge is likely to take and what your options are in respect of reaching an agreement at that point. If agreement is still not possible, the Judge will then use this information to make a decision at a later hearing, usually after hearing evidence from all concerned.
If your case is urgent we can advise on making an emergency application to the court in order to ensure that your case is dealt with swiftly and efficiently.
What is MIAMS?
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.
What types of orders can the court make?
The most common orders the court can make are a Child Arrangements Order ('live with' order sometimes called 'custody' or 'residence') and 'time spent with' order (sometimes called 'access' or 'contact') 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.
How will the court decide what order should be made?
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.
What is a child arrangements order?
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 a shared residence order means 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 contact by letter, electronic media such as Skype or Facetime or by telephone. The frequency can also be specified in the order and can be specific in terms of, for example, weekends or holidays but can also be more general allowing parents flexibility to make their own arrangements within a general framework. The court may also determine where the time spent with the child takes place and whether it is to be supervised.
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. 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 written consent of the other parent or a court order.
We will provide expert advice and guidance in order to achieve the best possible outcome for you and your children.
Our team also has extensive experience in cases where domestic or other abuse may be an issue and the specific considerations that the court will take into account in these circumstances.
What is a prohibited steps order?
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 or to prevent a change of surname.
What is a specific issue order?
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 have a particular operation or what religion a child should adopt.
What do I do if I wish to relocate with my child?
If you wish to move to live outside of the jurisdiction of England and Wales or move a significant distance within the jurisdiction (so as to create difficulty for your ex-partner to maintain their current contact pattern) with your child and your child's other parent objects, you will need to make an application to the court for permission to move. 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.
We can help, whether you are the parent wishing to move or the one potentially being left behind. We understand that issues such as these will have a profound effect on both you and your child and we will deal with such matters sensitively yet robustly in order to achieve the best possible outcome.
Do I need permission to take my child on holiday?
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 England and Wales). The legal requirements for obtaining permission will vary in accordance with what Children Act 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). This rule applies, whether or not parents are separated.
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.
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 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.
Can I change my child’s surname?
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.
How can I obtain financial support for my child from the other parent?
The law relating to financial provision for children is complex. Our specialist team recognises the importance of having sufficient financial resources to care for your child and can advise in relation to child support as well as whether there is any prospect of obtaining a lump sum payment or transfer of property for your child's benefit. This may be particularly relevant to unmarried parents where there are no such obligations to each other.
If you have any query in respect of your children or whether you are a grandparent or friend with similar concerns, speak to our approachable family law solicitors by calling 0345 073 9900 or by booking an appointment for a free 30 minute consultation. We are ready to listen and to assist you in any way we can.
Do I have to pay maintenance for my child?
When a couple separates, the absent parent will be required to pay child support in accordance with child support agency 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.
It is also possible to seek additional financial support for your child in the form of a lump sum for provision of property under Schedule 1 Children Act 1989, which can secure a property for both the child and the parent with care to live in. This is a specialist area of law which our family law solicitors have extensive experience in. We can advise you on the factors which will be taken into account in determining whether such an application would be successful and the likely outcome in your particular circumstances.
I am a grandparent, do I have any rights?
A grandparent has no automatic legal 'right' to see their grandchildren.
If you cannot reach agreement with the parents of your grandchildren, you may be able to ask the court to assist in making arrangements. Usually, 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.
What does the court take into account when assessing whether a grandparent can spend time with their grandchildren?
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 his or her life to the extent that he/she 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 consider the entire welfare checklist (s1(3) of the Children Act 1989) when considering the application, including:
- The ascertainable wishes and feelings of the child concerned
- The child's physical, emotional and educational needs
- The likely effect on the child if circumstances changed as a result of the court's decision
- The child’s age, sex, backgrounds and any other characteristics which will be relevant to the court's decision
- Any harm the child has suffered or may be at risk of suffering
- Capability of the child's parents (or any other person the courts find relevant) at meeting the child's needs
- The powers available to the court in the given proceedings
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.
My grandchildren live with me – do I need the court's permission to apply for an order?
There are certain circumstances where a grandparent does not need to the court’s permission ('leave') to apply for a Child Arrangements Order. This includes where the grandparent already holds a "residence order" in respect of the child, or for example, the child has been living with the grandparent for more than 3 years. If you are unsure whether you need to apply for "leave", we would recommend seeking specialist legal advice.
What is a Special Guardianship Order?
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 and as such, 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.
I don't want to go to court, are there any other options?
Mediation may well assist in resolving matters with the child's parents without recourse to the court, and often the parties will continue to take specialised legal advice alongside the mediation process to assist them. For more information, visit our mediation page.
Other methods of non-court dispute resolution are also available, including collaborative family law and arbitration.
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