The Children Act
The Children Act 1989 deals with the majority of the law for children. The Act became law in 1991 and has been refined by statute and precedent over the years.
The following is a guide to some of the main aspects of the Act and the law.
No Order Principle
Prior to the Children Act in every divorce case, the court had a duty to make an order in relation to the children. Orders for custody, joint custody, reasonable access or defined access were always made. Since the Act, the court is directed, that unless, there is a specific need to make an order then the court should not interfere with the parent’s decision about their children. The primary goal is to achieve a situation where no order at all is made. This reflects a view that decisions reached by agreement by the parents are going to be far better for the children and more workable than anything a court could or would impose upon the parents.
Agreements between the parents can cover far more aspects of the children’s life than Court Orders can give. Judges do not have the flexibility that parents have in reaching decisions and organising theirs and their children’s affairs.
Means all the rights, duties, powers, responsibilities and authority which, by law, a parent has in relation to a child and his property.
Parental responsibility allows the parent to make the major decisions in a child’s life, for example, where that child should live, at what school they will be educated, whether the child should have certain medical treatment, and what religion, if any, the child should have. This list is not exhaustive and is by way of example only.
A child’s mother always has parental responsibility for the child. If she was not married to the child’s father at the time of the birth, the father will only acquire parental responsibility by marrying the mother, by making a formal parental responsibility agreement with her, or by obtaining an order from the court. Since 2001 if the unmarried father is named on the child’s birth certificate he will have a parental responsibility.
Where both parents have parental responsibility and there is a disagreement between the parents on making of any of these important decisions, then either party has the right to apply to the court for a specific issue order.
Specific Issue Order
Where the parties are unable to agree to what they consider to be in the best interests of the child, they must consider whether mediation between the parties would help resolve the issue. The Form FM1, see enclosed, must be completed by the parties. If mediation fails, or it is deemed that the issue is not one that can suitably be dealt with by way of mediation then either party may make an application to the court. For example, if the mother decides that a child should attend a Roman Catholic school but the father prefers the child to attend a Church of England school, and mediation has failed, then that specific issue can be brought before the court for a decision to be made by a Judge.
When dealing with such applications the welfare of the child is paramount and the court is specifically directed in making its judgement to consider what is in the best interests of that child.
The Act creates a welfare check-list, which the court in every case involving a child has to consider.
The list includes:
- the wishes and feelings of the child concerned (considered in the light of his or her age and understanding);
- the child’s physical, emotional and educational need;
- the likely effect on the child of any change in their circumstances;
- the child’s age, sex, background and any characteristic of his or hers which the court considers relevant;
- any harm which the child has suffered or is at risk of suffering;
- how capable each of their parents are (and any other person in relation to whom the court considers the question to be relevant) of meeting the child’s needs; and
- the range of powers available to the court.
An absent parent has no right to see his children. The Act says that a child has a right to see his or her absent parent. It is an important distinction. Generally a court will uphold the child’s rights, but in each case will have regard to the welfare check-list detailed above.
Various orders may be made, including no contact, indirect contact (writing letters / emails / telephone), no order, defined contact (which includes staying and supervised contact). Increasingly, cases where there is a dispute over contact are being referred to mediation, at least initially. Mediation can be helpful. The majority of disputes about children do not concern whether the absent parent should see the children; but are about for how long, where, who with, holidays etc. These are not really legal issues and mediation can assist in bringing about an agreement between the parents. You should always keep your solicitor advised about how the mediation is progressing and seek your solicitor’s advice when it is needed. The court now has a power to refer at any stage a case to mediation.
This means where the child will live. In any case involving a child nothing can be regarded as permanent and change may be necessary in some circumstances. Whilst it may be appropriate for a child at one stage in his or her life to live with one parent this can alter. This will depend upon all of the circumstances at any one time. Again when making decisions of this nature, the court must have regard to the welfare check-list above. Every case involving children is unique and fact specific.
In the majority of cases where a dispute involving a child is brought before the court, the court will order the preparation of a report by a Cafcass officer (Child and Family Court Advice and Support Services). That officer will interview the parties and the children and file their report to assist the Judge.
Their conclusions are not binding upon the Judge but tend to be very persuasive. If a Judge wishes to depart from the Cafcass officers report then in his/her Judgment specific reasons for the departure have to be provided.
Finally, if you are proceeding with a divorce, please now fill in the Statement of Arrangements form, sign it and return to me.