Relationship breakdown and children's arrangements
By Joanna Stanton
There has been a surge of recent media attention surrounding the way in which courts determine Orders for children following the breakdown of a marriage or relationship.
Current legislation is found in The Children Act 1989, which embodies several important principals, the first being that the welfare of the child is the court’s “paramount consideration”. There are a number of issues the court is directed to consider when making Orders such as the ascertainable wishes and feelings of the child, the age and understanding of the child, its physical and emotional needs and the likely effect on the child of any change in circumstances. The courts have nevertheless been criticised for sitting on the fence or for merely maintaining the status quo, often in the mother’s favour.
If there are fundamental problems that cannot otherwise be resolved, either parent can apply to the court for an Order.
The first issue that should be addressed in disputes concerning children relates to determining who has parental responsibility (PR) for the child. PR is defined in Section 3 of the Children Act as being:
'All the rights, duties, powers, responsibilities and authority which, by law, a parent has in relation to a child and his property.’
Where the parents are married to one another both have joint PR. If the parties are unmarried PR rests with the mother. The unmarried father has no automatic rights, although he can acquire PR by entering into a PR agreement with the mother, by an Order of the court or if a Residence Order is subsequently made in his favour. PR can also apply to other carers such as grandparents. PR is a legal concept that gives a person day-to-day decision-making powers in relation to the child.
The four main Orders contained in Section 8 of the Children Act are:
Residence Order – Determines where and with whom the child will live.
Contact Order – The child’s right to have contact, usually with the other parent. Contact Orders can also be sought by other persons such as grandparents, providing the court grants permission for them to apply.
Prohibited Steps Order – These restrict a person with PR taking a particular step concerning the child. It may be used for example to prevent one parent removing the child from the UK.
Specific Issue Order – Used to settle a dispute relating to a specific exercise of PR towards the child, for example where the child goes to school.
There are other Orders available under the Children Act which can be applied in emergency situations or when the child is in the care of a Local Authority.
Court proceedings should always be viewed as a last resort when all else has failed. Within the Children Act, there is an overriding principal of non-intervention, in other words the court will not involve itself where workable arrangements have been made and agreed within the family. There are no rules or guidelines, so basically whatever arrangements are workable within that family unit are acceptable.
This sends a clear message to parents to try to put aside their own differences in the interest of their child or children. This can be easier said than done when feelings are fuelled by anger and bitterness but when a family is facing a crisis which may end in the courts, the first move should be to take a step back from the circumstances which gave rise to the relationship break up and to seek some immediate legal advice. Family matters left to drift and fester seldom resolve themselves.
A solicitor will be able to advise in detail upon the remedies available through the courts and to suggest alternative methods of resolving disputes, such as through the National Family Mediation Service.
They have mediators across the country trained to help parties reach joint decisions not only about the arrangements for the children but about other major issues such as property and finances. Mediators work alongside solicitors to encourage a speedy and satisfactory solution to the pressing problems facing separating families.
Above all else, parents who are able to agree amicable arrangements for their children retain control over the long-term decisions affecting themselves and their family. Parents in such situations are far less likely to feel that an unsatisfactory Order has been imposed upon them by a court system that has come under recent criticism for being out of touch with modern family dynamics.
