The law relating to children is covered by the Children Act 1989 and there are a number of key principles that the court applies.
The welfare principle
The welfare of the children is the court's paramount consideration and their guidance for considering this is contained in a welfare checklist under Section 1 (3) of the Act. This includes such considerations as the ascertainable wishes and feelings of the child and the capabilities of the parents.
The non-intervention principle
The court does not need to be involved if the parents have been able to reach agreement in relation to the children.
This is best defined as "the rights, duties, responsibilities and decisions you make every day in respect of your children but take for granted". A mother automatically has parental responsibility for her children. A father will automatically have parental responsibility if he is married to the mother at the time of the children’s birth, subsequently if he marries the mother, enters into a parental responsibility agreement with the mother or obtains a parental responsibility order. In addition since 1 December 2003 every father who is named on their child’s birth certificate acquires and shares parental responsibility with the unmarried mother.
The guiding principle for the exercise of parental responsibility is the welfare of the children.
What orders can the court make?
The most common arrangements that the court are asked to adjudicate on are:-
- Child arrangements orders: this includes specifying who the children are going to live with permanently and the child’s right to see the non-resident parent or other applicant.
- Specific issue order: this invites the court to adjudicate upon a specific issue such as removing the child from the jurisdiction of England and Wales or change of surname.
- Prohibited steps order: prevents somebody from doing something in relation to a child.
- Parental responsibility: grants the paternal father parental responsibility (see above)
I am not married to the other parent, what effect does this have?
The law under the Children Act applies equally to children of married or unmarried parents. If parents are married applications are often made within divorce proceedings. Married or unmarried parents can make "free standing applications".
How do I make a court application in respect of my children?
Free standing applications. The application is made to the court on a standard application form. This contains information about the children and parents.
What is the court process?
If court proceedings are necessary the timetable is as follows:-
- Attendance at a Mediation Information & Assessment Meeting is normally compulsory unless exemptions apply, before a court application can be made.
- An application for an order is prepared and sent to the court for issue;
- The court lists a first appointment known as a First Hearing and Dispute Resolution Appointment (FHDRA);
- At the FHDRA both parents are encouraged to see if an agreement can be reached. If agreement cannot be reached the court will give directions to take the case forward, which may include a child welfare report being prepared in respect of the children and the parties filing statements; the court may also ask the parties to attend a Parent Information Programme.
- The matter will come back before the court when the welfare report is available to see if in the light of the report’s conclusions an agreement can be reached;
- In the absence of an agreement being reached, a final hearing will take place when the court will make an order having heard evidence from all parties.
The process can take a number of months from issuing the application to the last hearing.