Family Matters - CHILDREN       01223 415372

Often the innocent victims of family breakdowns are children and it can be a worrying and distressing time for all parties concerned.

Parental Responsibility

Parental Responsibility is the rights, duties, powers and responsibilities that a parent has over a child. Parental responsibility entitles the parent to become involved in decisions concerning a child’s schooling, religion and medical treatment. All mother’s automatically have parental responsibility however it is a different case for fathers who will only automatically have parental responsibility in the following cases:

1.  If he is married to the child's mother, even if the marriage is after the child's birth.

2.  If he jointly registers the child's birth with the mother and the child is born on or after December 1st 2003.

3.  If the mother agrees that the father should have Parental Responsibility and a parental responsibility agreement is filed at Court.

4.  If the court orders that the father should have Parental Responsibility. This is typically the case if the mother does not agree to the father having Parental Responsibility. 5. If the father has a Residence order in his favour.

Residence

If parents cannot reach an agreement then either can make a free standing application to the Court pursuant to the Children Act 1989 for a Residence Order determining where the children will live on a permanent basis. Where a judge is faced with any decision concerning a child the child’s welfare will always be the Court’s paramount consideration. In determining what is in the child’s best interest the Judge will have regard to the following factors:-

1. the ascertainable wishes and feelings of the child concerned. This is not done directly, but through the Court's welfare officers, who are called CAFCASS officers. The CAFCASS officer will speak to both parents outside of Court and also to the child, if the child is old enough. The CAFCASS officer is also likely to arrange to see the child in the presence of both parents. Once the CAFCASS officer has spoken to everyone they will prepare a report, which will recommend what contact is suitable. A major disadvantage to going to Court is that it can be a long process, as it can take up to four months for CAFCASS alone to complete their investigations. The child’s wishes do not necessarily take precedence and much depends on the age of the children;

2. The child’s physical, emotional and educational needs. The Court will consider how the parents can provide for your children’s physical emotional and educational needs taking into account your current work commitments;

3.  The likely effect on the child of any change in circumstances. This factor really refers to the “status quo” and what the children are used to, i.e. who makes their breakfast, baths them, takes them to school etc;

4.  The child’s age, sex, background and any characteristics that the Court considers relevant;

5.  Any harm that the child has suffered or is at risk of suffering;

6.  How capable each of the child’s parents are of meeting the children’s needs. This is where the Court would consider to what extent work commitments would affect a parents ability to care for the children.

Contact

It is generally the Courts view that it is in the child’s best interest to have contact with the absent parent and there are various ways that we can help if contact is being refused or you are concerned about the contact that your child is having. Court is not always necessary and sometimes a formal letter to the other parent can resolve the situation however if this is appropriate then a Contact Order can be applied for. The Court will, as with a Residence Order (see above), consider that the child’s welfare is paramount. They will also look at the same factors as a Residence Order. There is no legal obligation for an absent parent to have contact with their child.

Child Maintenance

Child maintenance is a payment made by the parent who does not have main day to day care of your child to the parent who has main day to day care. You can reach an agreement between yourselves or alternatively you can use the Child Support Agency (CSA). A comprehensive guide relating to child maintenance can be found at: www.csa.gov.uk/en/PDF/leaflets/new/CSL303.pdf

 Please call or email Sarah Smith on 01223 415372 or sarah.smith@smslaw.co.uk for initial free advice or alternatively to book an initial free appointment.

If you would like legal advice then please call or email our family solicitor, Sarah Smith on 01223 415372 or sarah.smith@smslaw.co.uk for initial free advice or alternatively to book an initial free appointment.