Children and the law: when parents separate

When parents separate there are often decisions that need to be made about a child’s upbringing.

This legal guide sets out some general legal information about the types of orders the court can make in relation to children and answers some frequently asked questions.

Some of these issues can be complicated and your circumstances will be individual to you. You should therefore also seek legal advice.

Language

Whilst in this legal guide we refer to the child’s other parent as ‘he’ we recognise that this may not be the case. The law set out in this legal guide is generally the same regardless of whether the child’s other parent is a man or a woman, but if your child’s other parent is a woman you may also wish to read this guide alongside our Guide to Lesbian parenting

At some points in this guide we have referred to “the other party”. This means the other person in your case, whether it is the child’s other parent or another person with parental responsibility for the child.

Separating parents

When parents separate one of the most important issues to resolve is what arrangements will be made for the children. This can include issues such as where the children will live, how often the children will see the other parent, child maintenance, schooling and education.

Child arrangements can be flexible to meet the needs of the child. The children could, for example, live with one parent and have regular contact with the other parent. Some children live with both parents. For example, they could spend one week with one parent and one week with the other.

It is important for parents to communicate with each other in a respectful manner to agree arrangements which are centred around the best interests of the child. Remember that for important issues regarding children you should consult anyone with parental responsibility for the child. 

What if the other parent is or has been abusive, or controlling towards me?

If you are concerned that you or your child are at risk of harm you should contact the police and obtain urgent legal advice. 

The U.K. government defines domestic violence as follows:

‘Domestic violence’ includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse.

‘Controlling behaviour’ means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.

‘Coercive behaviour’ means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim.

Always ensure that arrangements are safe for yourself and your child. This may mean that the other parent should have no contact with you or your child. If you think it is safe for your child to see the other parent but you want to avoid seeing him then you could arrange for a third person to help with handing over the child from one parent to the other at the beginning and end of contact. The third person could be someone you know or a professional.

Some fathers see their children at contact centres. This is a place where parents can see their children with staff present. The staff can watch the family, take notes and provide reports if necessary (this is known as supervised contact). Sometimes there will be lots of families in one large room with staff in the room, but staff do not observe individual families (this is known as supported contact). Staff at contact centres can also assist with handovers, so the other parent can take the child away from the centre for contact but the parents do not have any direct contact with each other.

You should obtain legal advice from a solicitor or contact our advice line before agreeing to child  arrangements with an abusive parent.

What if we cannot agree child arrangements?

If you are unable to agree arrangements for children with the other parent then it may be necessary to seek legal assistance.

You could also try reaching an agreement through mediation. Mediation is a process where two parties discuss any issues in dispute with the help of a trained mediator, with the aim of reaching an agreement. Mediation is not appropriate if you have experienced domestic abuse. 

If it is still not possible to reach an agreement it may be necessary to make an application to the court for one or more of the orders detailed below.

Child Arrangements Order

Child arrangement orders have replaced what were previously known as “contact orders” and “residence orders”. “Custody” and “access” are also very old terms which are no longer used by the Family Court.

A Child arrangements order is an order setting out:

  1. who the child will live with, and when
  2. who the child will spend time, or otherwise have contact with, and when.

The court can order that the child lives with one parent or both parents, and specify when the child lives with each parent.

If the child lives with one parent, the court can order when the child is to have contact or spend time with the other parent. The contact could be face-to-face (direct contact). The contact may have to be supervised (either by a suitable person or at a contact centre). The contact may be indirect (such as through letters and cards).

The court can also make an order for the child to see the other parent for a specified number of hours. The court can also make an order for the child to stay with a parent overnight or more than one night (staying contact), for example over the school holidays.

If you are named as the person with whom a child is to live, then you will automatically acquire parental responsibility for the child if you did not already have parental responsibility. 

The court can add conditions to a child arrangements order (for example, a condition that the father is not to consume alcohol during his time with the child). The court can also add activity directions to a child arrangements order (for example, asking the parents to attend a course which provides information on how to deal with challenges faced by separated parents).

If anyone fails to comply with a child arrangements order, the court can make an enforcement order requiring that person to undertake unpaid work, or, in extremely exceptional circumstances, can imprison a parent who is failing to comply with an order. The court will not make the order if the person had a good reason for not complying with the child arrangements order. If you believe you have good reasons for not complying with a child arrangements order, you should apply to the court to have the order varied.

Specific issue orders

A specific issue order (SIO) is an order the court can make when two people who have parental responsibility (PR) for a child cannot agree about an important decision in a child’s upbringing. 

For example, you can ask the court to make a SIO if you cannot agree about:

  • your child’s education – for example what school she or he should go to;
  • your child’s religion – for example whether your child should be brought up in one faith or another;
  • your child’s health – for example what medical treatment your child should have;
  • your child’s surname

The court is unlikely to become involved in less important decisions about the way in which you bring up your children, such as the day-to-day decisions you make. For example, your child’s other parent is unlikely to be able to ask the court to interfere in decisions about the clothes you dress your child in, the food you give your child, or who you choose to baby-sit.

Prohibited steps orders

A prohibited steps order (PSO) is an order the court can make to forbid a person who has PR for a child from taking certain action in relation to that child. 

You can ask the court to make a PSO forbidding your child’s other parent or another person with PR to:

  • remove your child from your care;
  • remove your child from school;
  • move your child abroad;
  • bring your child into contact with certain people;
  • change the child’s surname

The court can make these orders without the other person being given notice of the hearing, in an emergency. The court may make a temporary or interim PSO and arrange another hearing when the other person can attend and put his or her side of the story. A PSO could also be made to last indefinitely.

Changing your child’s name

Although there are no legal rules or requirements for changing your child’s surname, there is clear guidance from the courts that says you must first seek the permission of your child’s other parent (specifically the child’s biological father) and anyone else with PR to change the child’s name. This is the case regardless of whether the father has PR or not. If you do not get his permission, he could apply to the court for a specific issue order to change the child’s name back to his surname. If you are not able to obtain the permission of those with PR (and your child’s father if he does not have PR), and you still wish to change your child’s name, you should make an application to the Court for a SIO. If the change of name is agreed by the father, or a court has agreed to it, you can prepare a statutory declaration or change of name deed to formally change your child’s surname.

Holidays, moving abroad and child abduction

There are important rules about when you are allowed to take your child abroad and serious consequences if you do so without the appropriate consents.

Many parents arrange to go on holiday or relocate with their children but these issues can be one of the most complex and confusing areas of family law when parents do not agree. 

I want to go on holiday with my children – what if my child’s father refuses permission?

If your child’s father refuses to agree to you going on holiday abroad with your child,
then you will need to apply to the Family Court for a specific issue order. This is an order the court makes when it is asked to decide a particular issue that the parents
are not able to agree on.

You can make this application on an emergency basis if you  have travel plans, but you should be aware that the Family Court may not be able to deal with your case very quickly. A court is unlikely to make an order allowing you to go on holiday with your children unless they have heard why your children’s father does not agree.

The Family Court can make an order allowing you to go on holiday on one occasion, or if there are likely to be further disagreements, can set out an order which allows for regular holidays and school trips.

For example, you could ask the court to make a child arrangements order that says the children live with you so that you can give permission for the children to travel out of the country for up to 28 days. The court may make this order if there is a history of your children’s father refusing to give permission for holidays for no apparent reason.

If your children’s father is very worried about you going on holiday in the UK or abroad with your children, then he can make an application for a prohibited steps order. This is an order which stops a parent from doing something or taking particular steps in relation to the children.

Your children’s father can make an application for a prohibited steps order even if he does not have parental responsibility. If a prohibited steps order is in force, then you can be punished by the court if you do something you are forbidden from doing.

If you are travelling without the other parent, but you have their agreement to the holiday, it is sensible to get this agreement in writing, especially if your children have a different surname from you as you may be asked to provide this information on your way in or out of some countries.

Although it is not a legal requirement in the UK, you may also wish to travel with some form of written confirmation that you are your children’s parent, for example, their birth certificates. If you look after your children on a day to day basis, then you can take them on holiday within the UK. However, you will need to make them available for any court ordered contact. For example, if the father of your children has court ordered contact
every weekend, you can take them on holiday in the UK during the week, but you have to make the children available for contact when the court order says. If your children do not live with you, you can take them on holiday within the UK during the time you have contact.

It is a good idea to inform the other parent where you are going, how long for and
how to contact you in an emergency unless you believe it would not be safe to do so.
If you would like to take your children abroad, then you must get the agreement
of everyone who has parental responsibility for your children. 

If your children’s father does not have parental responsibility for your children, then you do not require his permission to take your children on holiday either in the UK or abroad. As explained above, you must still make sure you comply with any court ordered contact. It is best to provide the other parent with information about
the holiday unless you believe it is not safe to do so.

If you do not get the consent of everyone with parental responsibility, you may be
committing a criminal offence. You are required to obtain consent even if your children are going away without you, for example on a school trip.

If you have a court order which states that your children live with you, then you can go abroad with the children for up to 28 days without getting permission from everyone with parental responsibility. You must, however, still make the children available for any contact arrangements ordered by the court.

I would like to move abroad permanently with my children.

You will need the permission of everyone who has parental responsibility, or a court
order to relocate to a new country. If the other parent with parental responsibility does not consent to the relocation, you must apply for a relocation order in the Family Court. The order will be granted if relocation is in the best interests of your children.

The court will look at a number of factors when they make this decision, in particular,
they will consider the welfare checklist. This is a list of factors the court has to consider
for every child before they make orders relating to their upbringing. 

They are:
1. Your child’s wishes and feelings.
2. Your child’s physical, emotional and educational needs.
3. The likely effect on your child of any change in his or her circumstances.
4. Your child’s age, sex, background and any relevant characteristics.
5. How capable both parents are of meeting your child’s needs.
6. The range of powers available to the court .
The court has to consider the welfare checklist when deciding any application
for an order about how a child is going to be brought up. If you are asking the
court to make an order for your children to permanently move to another country,
there are some additional factors the court will want to know about before they can
make a decision.

The court will want to make sure that there is a detailed and well thought out plan for the children in the country you are planning to move to. 

This plan should include detailed information on:
• Your motivation for relocating. It will be important to demonstrate it is not because you want to deny your children a relationship with their other parent.
• Your job prospects, or other details about how you will support yourself and your children financially.
• Information about where you will live including considerations about how much it will cost to rent or buy a home;
• Immigration status for you and your children, including any applications you will need to make. You will need to consider what type of visa you will need, how long it will take to get it, how long it will last and if there is a risk that you may not be able to stay
in the country at the end of your visa.
• Arrangements for your children’s schooling including whether you will need to pay for schooling and how much this will cost.
• Arrangements for the children’s health care if the country you are moving to does not have a national health service, how will you afford to pay for health insurance for you
and the children. If any of your children have any special medical requirements, how will these be met.
• Any family support you will have if you move. If you will not have any family support in the country you are moving to, how will you be able to build up a support network.
• Details about how your children will continue to have contact with their other parent, including telephone contact, contact over the internet and visits or holidays. 

You will need to think about a plan that is realistic depending on how far away the children will be from their other parent, how long they will travel for and how much it will cost. You may be expected to contribute towards the costs of visits or holidays

The purpose of the court looking at these factors in detail is to understand how your children’s welfare will be met in the country you want to move to. As part of looking at the best interests of your children, a court will look at how the decision will impact on you as your child’s carer. A court will be concerned if you do not intend on helping your children maintain a relationship with their other parent.

Finally, the court will also consider the reason why your children’s father does not agree and will want to understand whether his concerns are child focussed or are motivated by an ongoing battle between the parents.

Effect of relocation on child arrangements orders Not all countries will recognise a child
arrangement order that is made in the UK. This means that even where there is a court
ordered arrangement for contact with your children’s other parent, it is not necessarily
enforceable in that country. If it is not, then the court will consider this when they
make an order for relocation.

Immigration and family proceedings
If you or your children’s other parent do not have settled status in the UK, then this may also be considered as part of the family proceedings. You can apply to remain in the UK if you have a child arrangements order to spend time with children who live here, or if you are caring for children who have contact with a parent who is British or settled in the UK.

In most cases, telephone contact or indirect forms of contact will not be sufficient.
If you are making immigration applications at the same time as a case is being heard in
the Family Court, then the information can be given to each court. There is a special
procedure for sharing information between the two courts. If you believe that your
immigration status, or the immigration status of your children’s father is relevant
to the case, you can ask the court for an order that this information is given to the
court.

My children’s father would like to move abroad

If your children’s other parent would like to move abroad without your children, then
that is their choice and the Family Court cannot prevent an adult from moving to
another country. They can still apply to the Family Court for child arrangements orders,
for example, to arrange holiday or staying contact as long as your children remain in
this country. 

If the father of your children wishes to move abroad with the children, he will
need either your permission or an order from the court. The factors the court will
consider are set out above.

How the court makes decisions about children

When making any decision about a child the court’s primary consideration is the welfare of that child. The court will only make an order if they believe that it is better for the child that the order is in force than not making any order at all. This means the court will not usually make an order to confirm that your child lives with you if nobody is disputing that the child should live with you.

The court will consider all the child’s circumstances and in particular the following factors:

  • your child’s wishes and feelings depending on her or his age and understanding (generally the older your child is the more emphasis the court will place on those wishes and feelings)
  • your child’s physical, emotional and educational needs (this includes practical needs such as accommodation and food as well as love and affection)
  • the likely effect on your child of any change in her or his circumstances (the court will look at the previous or existing arrangements, and generally considers that change can be disruptive to a child)
  • your child’s age, sex, background and any characteristics the court thinks relevant (this could include any cultural or religious needs or any special needs or disabilities your child might have)
  • any harm your child has suffered or is at risk of suffering (this includes physical, sexual or emotional abuse and now also includes any domestic violence your child has seen or heard)
  • how capable both parents are of meeting your child’s needs (the court can consider both your skills in looking after your child and can consider whether these are impaired, for example, by drink or drugs)
  • the range of powers available to the court (the court can choose from a very wide range of different orders when making these decisions).

There is a presumption that it is in a child’s interests to have both parents involved in the child’s life, unless there is a good reason why he should not be involved. This could mean direct involvement (such as seeing the child regularly) or indirect involvement (such as by letters and cards).

The issues relating to orders about children can be complex and we have provided a very basic overview of terminology, law and court practice and procedure. We would also strongly advise you to seek legal advice by either telephoning us on 01914862799 or by email to jbrown@nechambers.co.uk  

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