Here are my answers to several of the questions I am often asked about children issues. If you have further questions that are not answered on this website, please use the contact form to contact me.
No. You and the other parent are expected to be able to agree the arrangements for your children. If you can agree between yourselves, there is no need for a court order.
CAFCASS have published a Parenting Plan leaflet to help you work out the best arrangements for your family. If you and the other parent struggle to reach an agreement, it is worth seeing whether mediation or collaborative law can help you. A solicitor can help you with negotiations as well as provide legal and practical advice.
Only if you have tried everything and still cannot decide what the arrangements should be, will you need to consider applying to the court for an order.
Get some good legal advice from a specialist family solicitor.
Your solicitor will contact the parent refusing contact, usually in writing, in hopes that a solution can be found. Get some advice on the alternatives to court but, if necessary, your solicitor will help you make an application to the court. The Court will generally be sympathetic to your situation unless the parent preventing contact can show that they have a good reason for stopping contact. They would have to demonstrate that contact isn’t in the child’s best interest.
If you already have a court order then you can apply for enforcement and the courts can take action against those who do not obey them. The court can impose sanctions on contact orders if necessary, which encourages compliance. Action can include unpaid work directions, monitoring of contact by Cafcass, payment of financial compensation, imprisonment (although this is rare) for contempt of court and, in some cases, an order that the child live with the other parent on a permanent basis.
Parental responsibility refers to the rights, responsibilities, authority and obligations that most parents have in respect of their children. It gives parents the legal basis on which to make decisions about a child’s upbringing including important decisions such as their name, which school they will attend and what medical treatment they will receive, what religion they will follow and whether they will relocate out of the UK.
Mothers always have parental responsibility for their child, unless the child is adopted by somebody else. Fathers who are married to the mother at the time of the child’s birth also have parental responsibility.
For father’s who are not married to the mother when the child is born, other factors are relevant. If the child was born after 1 December 2003 and the father is named on the child’s birth certificate, he will have parental responsibility. If the child was born before that date, only the mother has parental responsibility, even if father is named on the birth certificate.
There are a few methods by which a father without parental responsibility can acquire it:
• by marrying the mother
• by obtaining a parental responsibility order from the Court
• by entering into a formal parental responsibility agreement with the Mother (this is a formal procedure requiring particular documents)
• by obtaining a residence order
• by being appointed as the child’s guardian
People have many reasons for wanting to relocate, perhaps for a new job or to be closer to the support of family. If you wish to relocate with your child to another location in the UK, you do not need the other parent’s formal permission. However, you should inform them of your intention and make new arrangements for contact.
If you object to your child relocating with the other parent, you can ask the court to make an order preventing them, at least until your objections have been fully considered. The court’s primary consideration will be the best interests of the child. It is generally difficult to obtain an order that permanently prevents the children being relocated within the UK, despite the difficulties this will cause in contact arrangements.
If you do not have a residence order you cannot take your child from the UK without the consent of anyone else that has parental responsibility, usually the other parent. You should request written consent from the other parent to act as evidence in case immigration authorities question your right to take the child abroad. If written consent is refused, you can make an application to the court. The court will usually allow a holiday abroad, provided you do not plan to visit a dangerous location and all practical issues are dealt with. It is likely you will have to provide details of where you will be staying and details of travel, such as flight tickets. The proceedings can take several weeks to resolve so deal with disagreements early.
If you have a residence order or a shared residence order, you do not need permission for a trip abroad that is shorter than 28 days. If you do not want your child to be taken abroad, you can make an application to court to prevent the holiday, for example, if you think the destination is dangerous or your child will not be returned.
There is nothing in the law to lead courts to chose one parent or another. However, when parents separate the majority of children stay with their mother and a minority with the father. Unless there is an important reason why a child must be relocated, the courts will be reluctant to move a child who is settled. Additionally, it is traditionally more common for a father to be working full time while the mother has more child care responsibilities. This has practical consequences for arrangements for the children when parents separate which means there is a greater number of contact orders for fathers and residence orders for mothers. However, there is no legal bias towards children residing with their mothers.
It is up to the parents to decide where their children should live following separation. They decide between them whether or not to take into account their children's wishes.
However, if the parents have been unable to agree, and court proceedings have been issued, the wishes and feelings of the child will be considered in the light of their age and understanding. The importance of a child's opinion is not simply to do with their age. It would not be appropriate for a child to tell their parents or a judge what to do! The Court will consider the child's maturity, how they expressed their wishes and the full facts of their situation. If either of the parents is believed to have influenced the child, this will also be considered. Generally, the wishes and feelings of a child below the age of 11 will be taken into account but will not usually carry such weight.
Where there is no court order in place stating who the children are to live with, and the non-resident parent does not return a child after contact, no laws have been broken. The police may check the residence is safe but are unlikely to become involved with the situation. If it is not possible for parents to resolve the matter between themselves, they could consider using solicitors or mediation to attempt to reach resolution. If the matter is still not resolved it will be necessary to seek resolution through the courts and it may be necessary to issue proceedings on an emergency basis. If you are worried that your child is at risk of harm, you should seek immediate legal advice.
This is a common problem and the answer depends on just how late the other parent is and why. Consider these questions...
• Are the contact arrangements failing to fit into with their other commitments - should the contact start later each time?
• How late are they? 10 or 15 minutes might not be considered significant.
• Is the lateness causing any practical difficulty?
• Are the children upset about being home a bit late or do they enjoy the extra time with their other parent?
• Is the other parent warning you that they will be late?
• Do they provide an acceptable reason for being late?
Consider keeping a diary so you can show the other parent how often they are late. This will also be useful in subsequent mediation or proceedings if these become necessary. Whatever the issues are, the best thing is always to talk about them with the other parent.
Keep calm. Don't confront the other partner about the allegations outside of court. Be very cautious when communicating with them as outbursts, thoughtless texts and emotional emails may be used as evidence of your alleged aggressiveness. Be motivated to disprove the allegation and provide evidence showing that you are a safe and capable parent but don't aim to prove that the other parent is a liar. Hostility generated by allegations can suggest that you are both incapable of working in the children's best interests.
Quite often allegations are made about domestic violence, alcohol, drug use or mental ill-health which may suggest potential for harm to either the children or the other parent. In such cases, the Court needs to ensure their safety. The judge will consider evidence carefully and decide whether or not the allegations are true. Allegations regarding drug use or alcohol may result in testing being required. GP or psychiatrist reports may be needed regarding mental health. A fact finding hearing may be needed to explore allegations of domestic abuse.
In the meantime, contact may be limited or confined to a contact centre to ensure that the children are safe. If the court ultimately decides that the allegations genuine, it will not necessarily mean that contact is prevented - it simply means that it might have to be managed in a different way.
If there is no existing contact order, the person with whom the child lives can dictate the terms of any Contact that takes place. This may include a condition that your new partner is not to be involved in the contact. If you are not happy with those terms, and all attempts to resolve the dispute in correspondence or mediation have failed, you may wish to apply to the Court to deal with the matter. However, bear in mind that the primary concern is the child's contact with you . Contact on terms you don't like will probably be better than no contact at all, especially from your child's point of view.
A new partner can increase the tension between you and the other parent, often because of fears that the new partner will be a replacement of sorts. children can also find it difficult to accept new partners, especially if they have been hoping their parents will get back together. A new partner should always be introduced to a child and become involved in their life gradually and only when the new relationship is established.
It is possible that any contact order may include a condition that a new partner's involvement is limited in some way. However, this would only be where there are serious concerns regarding the child’s welfare if they start spending time with the new partner.