29th October 2014
Custody of Children - UK Laws and Rights
When parents separate, sorting out arrangements for their children is usually a top priority. Here are the top 10 questions I find are commonly asked when I meet with parents who have separated;-
1. How do I get custody?
Custody as a term does not exist in this country. Instead arrangements for where a child should live and how a child should spend time with the non resident parent must be considered.
Arrangements should always take place to suit the best interests of the child involved. These arrangements can be made by agreement directly between the parents, by the use of services such as mediation to reach an agreement or by making an application to court for a Child Arrangements Order.
2. When can I see my children and do I need an order?
How often a parent sees a child entirely depends on what is best for the child and what suits the family circumstances. There is no set rule. Every family is different and what works for one family, might not work for another.
Some people work weekends and see their children during the week, some people work shifts and the times have to suit that. Some families prefer for the child to have one home during the week and then alternate weekends and school holidays with each parent and some have a shared care arrangement with the children spending alternate weeks with each parent. Shared care is not always about dividing time equally. The courts are realistic that it is not practical to split time 50/50 unless parents wish to and have reached that agreement.
There are many, many options that can be considered and put in place to suit the child involved.
There is no need for a court order if everything is agreed. It is always better to resolve the arrangements surrounding the child directly or with the help of a solicitor or mediator. It is only in circumstances where nothing can be agreed or there is a serious issue such as domestic violence that needs to be addressed, that an application to court for a Child Arrangements Order might be needed.
3. Do I have to go to mediation?
If parents are able to make arrangements between them or with the assistance of a solicitor, then mediation may not be necessary.
In circumstances where parents cannot agree it is a requirement to attend a mediation meeting before any court application can be started. It is only in limited circumstances that the requirement to attend mediation is not necessary, for example if there is domestic violence where the police have been involved or if there is an urgent issue for the court to determine.
The hope is that with the benefit of mediation, parents will reach an agreement and avoid the necessity of their children becoming subject to a court application and an order imposed by a Judge.
Legal aid is still available for mediation for those who qualify financially. This is an advantage for many parents. The scope of mediation is also very wide and children can be involved where appropriate so that their wishes and feelings are known. The process is much quicker, cost effective and less stressful than a court application.
4. Can I take my child on holiday?
Either parent can take their child on holiday unless there is a significant risk to the child. Both parents need to agree and if agreement cannot be reached then an application to court for an order can be made.
Most people (Judges included) tend to believe that children benefit from holidays, as they enjoy them so much. It is always better to agree in relation to holidays unless there is a significant reason not to, for example the holiday means the child misses school.
If one parent has an order that the child lives with them, then they are permitted to take the child out of the country for up to four weeks without consent. It is still always better to have consent and agree. For example if there is an order in place for the child to see the other parent during the 4 week period and the parent taking the child away does not rearrange this time, then they could end up in trouble with the court as they would be in breach of the order allowing the other parent to spend time with the child.
5. Can my new partner meet my child?
This is a very sensitive area. Most children find their parents separation very traumatic, regardless of their age. It is not advisable for new people to be introduced to their lives until the child has settled and the new relationship is one that seems likely to last.
If partners come and go from a child’s life it can have a damaging effect. It is normally best for the relationship to have been stable for some months before a partner is introduced.
There is also the risk that if a new partner is introduced too quickly, the child will react badly and stop wanting to see that parent or partner altogether. These situations are best avoided. Most parents take their time and make sure the child is ready to meet someone new. Discussing this with the other parent can often help if done sensitively.
Some parents ask if they can stop their child meeting the other parent’s new partner. The decision has to be based on the same factors, it depends if the child is ready.
One thing that should always be considered is that one parent cannot really object to the child meeting their ex’s new partner if they have already met their own new partner, unless there is a significant reason why it does not seem suitable. Meeting a new partner or not, cannot be used by one parent to punish the other.
6. Can my child stay with me overnight?
There is no reason a child should not be able to stay with either parent overnight. Sometimes it takes time to get to this stage, especially where children are unsettled. It is best to take things at the pace of the child involved.
In some situations it is not practical for a child to stay overnight. You cannot for example have your child to stay overnight if you do not have anywhere for them to sleep. Sometimes when parents separate, one parent might temporarily have to live with a friend whilst they look for accommodation. Overnight contact might not be suitable then, but it should be once the accommodation is sorted.
Unless there is significant risk of harm to a child by a child staying overnight, or the child is very young, overnight stays will always be viewed to be in the child’s best interest.
7. What is Parental Responsibility and how do I get it?
Parental responsibility is a legal tem that is defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. In basic terms, parental responsibility gives parents the ability to make important decisions in relation to their child. This responsibility can be exercised jointly or separately, depending on the decision that has to be made.
It is not realistic when parents separate, for every minor decision to be agreed for example what the child should eat that day. There has to be some common sense applied. For the major decisions such as schooling, healthcare, religion and the name the child is known by, both parents with parental responsibility should agree.
Mothers automatically acquire parental responsibility when they give birth to a child. Fathers acquire parental responsibility if they are married to the mother or subsequently marry the mother after the child is born. If the parents are not married then the father can acquire parental responsibility in the following ways;-
- if they are named on the child’s birth certificate and the birth was registered after 1st December 2003;
- by entering into a parental responsibility agreement with the mother;
- by obtaining a parental responsibility order from court;
- by obtaining a child arrangements order for the child to live with them;
- by being appointed a guardian for the child (this will only occur in the event of the mothers death).
If a father is actively involved with their child and has a meaningful relationship with them, parental responsibility should be in place. A court will always make a decision based on the best interests of the child and if they are seeing their father, it is very likely to be in their best interests and will be granted. For example, what happens if a father is with their child and there is a serious accident and urgent medical treatment is required, if the mother cannot be contacted quick enough it is vital for the father to have parental responsibility and be able to consent to that medical treatment.
Issues such as changing a child’s name, or removing a child from England and Wales require consent of the people with parental responsibility. Other decisions such as schooling do not specifically require consent. There is a duty of consultation and these decisions should be agreed wherever possible. This avoids conflicts and potential court applications.
Other people can obtain parental responsibility in certain circumstances for example grandparents who have their grandchildren living with them.
Parental responsibility can only be lost in extreme circumstances such as death of a parent, adoption or by court order (i.e. where the court revokes an order previously made).
8. Can I change my child’s surname?
You can change your child’s surname if you have the agreement of everyone who has parental responsibility for the child. If you do not have agreement and the issue cannot be resolved at mediation an application to court for a child arrangement order can be made.
9. How old does my child have to be before they can decide for themselves?
This is a frequently asked question. The answer is complicated and depends very much on the ability of the child and the circumstances of a case.
As a general rule in a case which concerns a competent child, aged 16 is when their decision becomes overriding.
A recent announcement by the Family Justice Minister has indicated that children from the age of 10 will be given the opportunity to speak to a judge if they are involved in the family courts and allow their voice to be heard before a decision is made. Although it is unclear when this will be brought into practice, many children aged 10 upwards do have their wishes and feelings taken into account within court proceedings, usually through the use of child consultation mediation or a report from a social worker or CAFCASS officer involved in a case.
The more competent a child is for their age, the more weight their opinion will hold. It will be one of the factors taken into account when an issue concerning their future is looked at. There are other factors as defined in the Children Act 1989 that have to be looked at to ensure that the decision is in the best interests of the child.
10. Can I stop contact?
Although the label of contact was replaced in April 2014 by the concept of spending time with a parent and a child arrangements order, many people still ask whether they can stop the other parent from seeing the child.
Whilst separation can be a very difficult time, children must be kept out of the adult conflict at all times. It is not fair to use them as weapons within a separation. Children should spend time with both their parents and the arrangements should be consistent and organised to suit the whole family, especially the child.
In some circumstances for example where domestic violence is an issue or the child is at risk of harm, it may be felt safer for the child not to see the parents until formal assessments have been completed.
In normal circumstances children should see both their parents. If there is disagreement about how and when this should take place, then attendance at mediation, negotiation through solicitors or an application for a child arrangements order can be considered.