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Child Arrangements and Parental Responsibility
After separation, parents may disagree on what is best for their children. Disputes about children can take many forms: who will they live with, when will they see each parent, how should holidays and special occasions be divided, how should big decisions be taken? Our national family team is here to help you identify your goals and reach positive, workable arrangements for your children.
We advise and represent parents, grandparents and other family members in a wide range of disputes about children, including emergency court applications and child abduction. We have also developed considerable expertise in assisting international families and frequently represent clients in cross-border disputes.
How JMW Can Help
We will help you to reach an agreed solution wherever possible. There are a variety of ways to make this happen, whether informally between yourselves or in a more formal setting, such as mediation.
The court will only need to be involved in deciding arrangements for children if there is a dispute that cannot be resolved through discussion and negotiation. If this becomes necessary, there are several different types of court order available, depending on the circumstances and the nature of the dispute. These include:
Child arrangements order
This is an order that regulates who a child lives with, at what times, and who the child spends time with, including parents and other extended family. Before April 2014, these were known as residence and contact orders. It is these orders that many people think of as “custody” though as a matter of technicality, there is no such thing as a custody order in English law.
Specific issue order
This order is made when the court decides a particular issue in dispute, such as which school a child should attend.
Prohibited steps order
An order of this type forbids a person from taking a particular action in relation to a child, such as taking them abroad.
For more information on child arrangements orders, take a look at our introductory guide
Are there any fixed rules about who children should live with?
No. The court does not have a set of presumptions about who should be caring for children. Each case is individual and the court will be interested in one thing only: what is in the children's best interests.
There are families in which one parent has taken a step back from employment or reduced their working hours to care for the children and this could mean that the children would spend more weekday time with that parent for practical reasons. This could equally apply to a mother or a father.
In other families, the children will divide their time pretty much equally between their parents' homes after separation. There are almost as many permutations as there are families.
My ex and I are getting divorced and want to keep everything as amiable as possible. How do we prevent the court from getting involved?
It is a really important principle of the law relating to children that the court will not become involved in family life unless it needs to do so. Even though the court will be handling your divorce, this is very much a paper exercise and it will not scrutinise the arrangements for the children unless either you or your wife makes an application to decide a substantive issue you cannot agree between yourselves. For most divorcing couples, the court will play no active role whatsoever.
Even if a difficult issue does arise, you and your wife can attempt to resolve matters through discussions or through a slightly more formal process of mediation. This can work really well to bring about a resolution before issues escalate and become acrimonious. In fact, in all but exceptional cases, the court will expect parents to have been to a mediation information and assessment meeting (MIAM) before applying to court.
How do we move forward if we cannot agree on anything to do with the children?
There are lots of ways to try and deal with a dispute, even when talking face to face seems not to be working any more. Mediation can work really well for some families. A specially trained facilitator, usually a family lawyer themselves, will bring the parties together to try and work something out that everyone can live with.
If an important process cannot be resolved within mediation or another non-court dispute resolution process, either party can make an application to the court. The court will not impose a solution on a family unless there is an insoluble issue that needs to be determined. Even within the court process, judges will do their utmost to bring parents towards an agreed arrangement and avoid a contested hearing, if at all possible.
Can I seek legal advice if I go through mediation?
Yes. It is very important that anyone going through mediation has the opportunity to seek advice and support from their own solicitor. Although the actual meetings will usually only involve the separating couple and the mediator, who is neutral so cannot give legal advice, you can and should take legal advice whenever you feel it necessary between sessions.
Often someone will meet with their solicitor before a mediation session to get a clearer idea of their legal rights going into negotiations and then catch up with their solicitor afterwards to 'debrief'.
What rights do I have if I’m not married to the mother of my child but I am on his birth certificate?
If the birth was registered or re-registered after 1 December 2003 and you are named on the birth certificate, you will have parental responsibility for the child. If the birth was registered before this date, then you do not have parental responsibility. However, you can acquire parental responsibility for the child in several ways:
- If you marry the mother of the child
- If you enter into a parental responsibility agreement with the mother
- If you obtain a parental responsibility order from the court
Can parental responsibility be restricted?
If either parent is unable or unwilling to act in the best interests of a child in a way that could expose them to harm, it is sometimes necessary to seek to restrict the involvement they have with that child, together with their ability to make decisions in respect of the child’s upbringing and/or to obtain certain information about the child that they would otherwise be entitled to.
A parent’s ability to exercise parental responsibility, whether in respect of decision making, or obtaining information, can only be changed by the court.
There is no scope in law for the court to remove parental responsibility from a birth mother or a married father, unless their legal parenthood is ended by a parental order (part of the legal process involved in a surrogacy arrangement) or an adoption order, but there are various orders that can be made to restrict a person from exercising their parental responsibility.
Parental responsibility can be removed from other individuals who hold it (e.g. a grandparent with a “lives with” order), or it can be restricted. It is only in very rare circumstances that a court will outright remove parental responsibility from a parent who falls into this category and the court will consider very carefully what measures are proportionate to balance any risk to their child, against their and their child’s right to family life.
Orders that restrict the exercise of parental responsibility can also be made in conjunction with other protective orders, such as injunctions, where it is considered necessary to safeguard the child and protect their interests.
How do I change the surname of a child?
As families evolve, it is common for a situation to arise whereby different members of the family have different surnames. In some families, a time may come when everyone wants to have the same surname. There are two ways in which this can be done:
- By completing a valid change of name deed
- By order of the court (specific issue order)
There are strict rules regarding who can change a child’s surname. If only one person has parental responsibility for a child, they can do so unless the court prohibits it. Where more than one person holds parental responsibility, a change can only be effected by everyone who holds parental responsibility providing their consent, and in default of that consent, an order of the court.
Even if a parent does not hold parental responsibility, they can make an application to the court for an order prohibiting any change by one parent with parental responsibility if they do not agree. If a change is made without the necessary permission - whether from the other parent or the court - the court can, and usually will, reverse the change and, in some circumstances, can impose costs orders in relation to the proceedings. It is therefore crucial to obtain legal advice beforehand.
The court considers a surname to be an integral part of a child’s identity and will closely scrutinise any application for a change. There is clear guidance set out in case law regarding when the court will and will not consider it to be in the interests of a child for their surname to be changed. This includes a careful consideration of how the child’s bonds with all of the adults involved in their life can best be respected and maintained. An application should never be made until all of the relevant factors have been carefully weighed up so that the likelihood of the application succeeding can be assessed.