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Children

When a relationship breaks down children can get caught in the middle. Everyone would agree that the best interests of any child involved must come first and, in fact, most couples are able to put their differences aside and make arrangements which work very well without assistance from anyone else. Unfortunately agreement is not possible in all cases and for these the skills of a legal expert may be required.

We are able to provide, with sympathy and understanding, professional advice to parents so that the needs of their children are met. We have experience in all issues concerning children such as contact, maintenance, residency and child orders and can take care of the legal aspects regarding adoption, change of name and paternity.

When separating it is important that parents try and reach agreement when making decisions relating to the child, no matter how difficult their relationship with each other has become. Mother and father will share their roles as parents for the rest of their lives and will have to work together if the needs of the child are to be met.

Parental Responsibility:
Parental Responsibility refers to the rights and duties of a parent for their child. It includes the right to make, or at least be involved in the making of decisions regarding the child such as schooling or medical treatment. This responsibility will continue until the child becomes an adult.

While married parents share parental responsibility, unmarried fathers do not automatically acquire this. Until 1st December 2003 unmarried fathers could only gain parental responsibility with the consent of the mother or by Court Order. After 1st December 2003, if the unmarried father is named on the birth certificate, then parental responsibility is automatic.

Shared parental responsibility gives couples, whether separated or not, the right to make major choices concerning the child, for example decisions regarding medical treatment or which school the child will attend. It does not give a parent who is not living with the child the right to interfere with basic/minor day to day matters.

Involvement of the Court:
Whilst parents should be able to put the interests of the child first, if they are unable to reach a mutually agreeable decision regarding the child either between themselves, following the advice of their solicitors or through mediation, then the court may have to consider the unsettled issue and make a decision. The intervention of the Court should however, always be considered a last resort.

Welfare of the Child:
When making decisions regarding the child, the best interests and welfare of the child is always a primary concern. The Court has a number of points regarding the child’s welfare that it will consider. The wishes of the child will be taken into account but the child’s age and comprehension will have a bearing on this. The Court will also weigh up the effects of any change upon the child and bear in mind any harm they may have suffered or is in danger of suffering. The Court will consider needs of the child, will assess each parent’s ability to meet those needs and only if necessary will the court make an order if it deems it to be in the child’s best interest to do so.

Residence:
One of the major decisions with regard to the child is about where and with which parent they will live. In most instances the parents will agree between themselves and the obvious choice would be the parent who already has the role of main carer. If parents fail to agree about residence then the Court will make a decision and will first and foremost make the welfare of the child its overriding priority.

The Court will consider the day to day needs of the child and who is best placed to deliver those needs. The child’s daily routine will be examined and the Court will give great weight to maintaining stability unless it deems that the current arrangements are inappropriate.

While many fathers feel that the Courts are more favourable towards mothers it is possible that, as it is normally the mother that takes on the role of main carer, particularly while children are young, and the courts desire to maintain continuity in the life of the child makes it appear to favour the mother. A Residence Order stating that the child will be living with one parent does not mean that the non-resident is a bad parent but that the Court has decided that, when all factors have been taken into consideration, it is better for the child to be with the other parent.

Shared Residence:
It is possible for the child to share residence with both parents although the practicalities of this arrangement may prove difficult. Both parents would have to live reasonably close to one another and the child’s school to make it easy for them to move between the two homes with little disruption. Shared residence also necessitates a level of co-operation often missing following the breakdown of a relationship.

Shared residence, even if possible, may not suit every child. Some children need the security and stability of one home and the courts will only consider shared residence if it considers this would be in the best interest of the child.

Keeping Children Together:
Children are rarely separated as it is normally considered better for them if they remain together. However, because the needs of each child are considered individually this may mean that separation is inevitable. For example, where an older child states a preference for living with one parent, the Courts may decide that younger children would be better off with the other parent.

The Views of the Child:
The Court will try to discover the genuine views of the child. If necessary a Reporting Officer will spend time with the child, listen to them and then inform the Court of their; findings. The Welfare Officers responsibility is to determine whether the views expressed by the child are their own, have been influenced by a parent or the child’s unwillingness to be honest in case one or other parent is hurt by the difficult choices they are being asked to make.

Contact Orders:
Where parents are unable to agree contact between the non-resident parent and the child the Court may make a contact order which will set out when the non-resident parent may see the child. The Contact Order may set out times; duration and type of contact in some detail but is more likely to outline the frequency without being too specific to encourage both parents to be flexible. This approach allows parents to sort out what will work best in practice and while they may find themselves at odds over certain points the more they consult with one another over access the more likely that arrangements will run smoothly.

Importance of Maintaining Contact:
Whilst there are no rigid rules in relation to contact there is substantial evidence that maintaining a relationship with both parents enables the child to deal with the effects of separation or divorce much better than those children who have little or no contact with the non-resident parent.

Opposition to Contact:
There are some exceptions to the general belief that contact with both parents is good for the child. The risk of violence to the child or the possibility of abduction will be considered a significant factor in the Courts decision to oppose or at least limit contact. In some instances the Court may decide that, while not in the child’s interest to have direct contact with the non-resident parent, that contact should be maintained indirectly in the form of letters and cards. Where there is a concern that the non-resident parent may abduct the child they may be required to surrender their passport or make certain assurances that minimise the chance of abduction in order to maintain contact with their child.

Stopping Contact:
Occasionally contact breaks down because of genuine concerns about the welfare of the child but it is not unusual for a parent to use the withdrawal of contact with the child as a means of ‘punishing’ the non-resident parent.

Unless it can be proved not to be in the child’s best interest to have contact with the non-resident parent the Court will oblige the parent with care to allow contact. The Court may impose sanctions on the parent refusing to permit contact, the most extreme being the transfer of residence from one parent to the other.

Leaving the Country:
A parent who shares parental responsibility with another parent is not permitted to leave the country, apart from for holidays of less than one month, without first getting permission from the other parent unless they obtain permission from the court instead.

Taking the child out of the country without the other partners permission, even if the child normally lives with them, constitutes abduction. However, if the move abroad is prompted by a wish to improve the lives of the parent and child and is realistic, the Court will give significant consideration to giving permission.

The Court will, in its deliberation, also consider the impact on the carer and the child if they refuse permission. They will however, try to ensure that the non-resident parent continues to have contact with the child even though this will probably be more difficult and less frequent.

Unless an unmarried father has shared parental responsibility he cannot prevent the mother from taking the child out of the country. If he is anxious that the mother may take the child abroad he should apply to the court for parental responsibility straight away, the Court may then take action to prevent this happening until they have reached a decision.

Changing a Child’s Name:
The child’s name cannot be changed without both parents agreeing to it. This is a sensitive issue as it may involve dropping the name shared by the child with the non-resident parent and the Court is therefore unlikely to allow a change of name as this is an important part of the child’s identity.

Schools:
Parents who share parental responsibility should make decisions about schooling jointly. If parents cannot agree the Court may have to make a decision on their behalf. If private education is considered in the best interests of the child the Court has the power to order a parent to pay the school fees.

Putting the Child’s Interests First:
The end of the relationship between the parents can create a difficult situation for the child. Parents should try to concentrate solely on the needs of the child and, despite their personal difficulties and problems, must be prepared to co-operate and occasionally compromise in order that these needs are met. The separation of the parents should not mean that the child cannot have independent loving relationships with both parents.

Feel free to contact our offices on 0845 458 6291 or email us at info@averyknights.com; whatever the nature of your query we will be more than happy to assist.