Children & The Law

What is the Law concerning the role of the parent?

How will this be affected by separation and divorce?

This section is designed to answer some of your questions, and help you think through the issues you face, whether you are living with your partner and separating informally, married and officially separating or getting divorced. You may also find it useful to discuss any issues or concerns you may have during mediation sessions so that both you and your partner are in agreement about your children’s future.

The Law

The Children Act 1989 identifies four main principles for consideration by a court in cases where court proceedings have become necessary.

The court have a duty to consider whether a court order in respect of children is necessary, and will not make an order if it can be avoided. Judges encourage parents to attend mediation and resolve their disputes out of court.

The Act sets down in law four very important principles :-

  1. When a court is determining issues regarding the upbringing of a Child, the Child’s Welfare is the paramount consideration.
  2. Parents are responsible for their children, rather than having rights over them.
  3. Parents are usually the best people to know what is best for their children and should always be encouraged to work together to reach agreements.
  4. Courts should only intervene and make orders when it is necessary.

The Act provides a new set of Court orders, explained below.

  • The views of the child can be heard in court via a CAFCASS officer who can interview children and prepare a report for the court.
  • The Law encourages parents who do not live with their children to keep in touch and stay involved in the child’s life. Parents are encouraged to decide together what is best for their children.
  • The Court will not make any order about a child unless the parents cannot agree and the Court is forced to decide for them.
  • Help is available. Mediation Services, the Children and Family Court Advisory and Support Service (CAFCASS) and Solicitors promote children’s welfare by settling disputes away from Court. Court is seen as a last resort.

What is Parental Responsibility?

Parental Responsibility enables a person to make decisions about a child’s upbringing, e.g. where the child should live, what he or she should be called, or which school to attend. It continues until a child is 18, although children can make more decisions for themselves as they get older. Parents who were married never lose Parental Responsibility if they separate or divorce, even if they do not live with the child. Generally speaking, a parent will only lose Parental Responsibility if the Child is adopted by someone else.

Who has Parental Responsibility?

Parents share Parental Responsibility if :-

  • they were married to each other when their child was born
  • they marry each other later

The child’s mother automatically has Parental Responsibility if the parents are not married.

The Act lets parents agree that the father should also have Parental Responsibility and this may be achieved by the joint registration of the birth of the child.

Alternatively, a prescribed form can be used to record such an agreement. Making such an agreement is a positive sign to a child of his parents’ willingness to work together for his or her benefit. If the mother will not agree, the father can ask the Court to make a Parental Responsibility Order.

Parents may ask another person, such as a relative or friend, to carry out their role while they are in hospital or abroad. Parents who do this remain responsible for their child.

Somebody who is not a parent – such as a step-parent, grandparent or other relative – does not have Parental Responsibility, even if a child is living with them. They can get Parental Responsibility in one of three ways :-

  • they can be made a guardian by a parent who has Parental Responsibility, or by applying for a guardianship order of the court.
  • they can obtain a Child Arrangements order from the Court
  • they can adopt the child

A marital step-parent may obtain Parental Responsibility via an agreement with the parents or via a court order (as with the ‘unmarried’ father above).

A step-parent does not get Parental Responsibility just by marrying the child’s parent. He or she must apply to the Court for a Child Arrangements Order.

Even if somebody does not have parental responsibility they must still do what is reasonable to look after a child placed in their temporary care.

When might a Court Order be Made?

A parent (and, occasionally, others) can apply to Court at any time. Children who have sufficient understanding can themselves apply for an order in exceptional circumstances.

The Court can make one of a range of practical orders to deal with any question about the child (see below).

The Court will decide what is best for the child. It will only make an order if one is needed.

How does a Court decide?

The Children Act 1989 provides the Court with a checklist to help it decide what is best for a child. This includes :-

  • The child’s own wishes and feelings, in the light of his or her age and understanding.
  • The child’s age, sex and background.
  • The child’s physical, emotional and educational needs.
  • The ability of those concerned to meet those needs
  • The likely affect on the child of any change in circumstances
  • Any harm the child has suffered or is at risk of suffering
  • The range of powers available to the court in such proceedings

The court will usually be informed of these by a CAFCASS Officer in a written report. The CAFCASS Officer will also have been asked by the Court to work with the parents to see if agreement is possible – another reason to have tried mediation first.

The Court will set timetables to avoid unnecessary delays, and is expected to deal with cases involving children more quickly.

What is a Court Order?

There are four different types :-

  1. A Child Arrangements Order
    A Child Arrangements Order is a legal agreement between the court and the parents or guardians of a child. Child Arrangements Orders are used to ensure that the child’s living arrangements are made in their best interests. It will determine where the children live, when and with whom. The children can spend some time with one parent and some time with the other, but live with both parents.
  2. A Specific Issue Order or Prohibited Steps Order
    This decides particular questions, such as schooling, medical treatment or emigration.
  3. A Family Assistance Order
    This is where a CAFCASS Officer or the Social Services Department advises and assists a family, with the parents’ agreement.

The orders can be made in any family proceedings. The Court can make whichever order it thinks best, or can decide to make no order.

Guardians

Parents can appoint guardians to care for their children after they die. This does not need to be done by Will, but must be in writing and signed and dated. However, a guardian will only have Parental Responsibility if all parents with Parental Responsibility are dead. If one parent with Parental Responsibility is still alive the guardian cannot act.

The only exception is where the dead parent had a Child Arrangements Order in his or her favour. In that case, the surviving parent with Parental Responsibility will share it with the Guardian. If a parent does not appoint a guardian before death, the Court may appoint one if necessary.

Mediation can help with all these issues.

IMPORTANT NOTE
These notes are based on The Children Act 1989, which has been in force since 1991. It is intended as general guide for your information. It is NOT intended as substitute for legal advice. Each case is different and advice cannot be given without analysis of your circumstances.

Acknowledgements
The National Council for Family Proceedings
The Mediation Centre

The Potential Impact of Divorce / Separation On Children

Shock Even though the child may have suspected or even knew that the partnership was ending, it is highly likely that when the moment comes it will still be a significant shock to them as the reality hits home.
Confusion Most children will feel a sense of confusion as they try to understand the implications for themselves of a separation. Most will not be able to envisage how their reality will look when the family unit is fractured.
Anger For many children a separation or divorce can cause a sense of anger and frustration due to the circumstances being beyond their control and the lack of any ability to affect the situation or make it “better”.
Grief Particularly where one parent has moved away from the family home, a child can feel a strong sense of loss or bereavement for that parent and for the family structure that is no longer there.
Fear Inevitably the lack of knowledge about what the future will hold will cause many children to be fearful about what lies ahead for them and also for their parents. Fears around contact, accommodation and money are all extremely common.
Guilt Particularly where children are unable to understand the nature and complexities of adult relationships they can develop a strong sense of personal responsibility or guilt for what has happened.
Insecurity All children thrive best on security. Divorce and separation can throw this into turmoil; and children can begin to feel insecurity about all aspects of their life. If this can happen then what else can change for them that once felt secure.
Worry It does not take much to cause children to worry about their lives or about those who are close to them. The turmoil of separation or divorce will inevitably lead children to worry especially if they do not understand what is happening.

What is the Impact of these factors?

There are a wide range of ways that the above factors can affect children. Behavioural changes are not uncommon and can vary between significant “acting out” or extremely withdrawn behaviour. On the surface it may not seem that some children are affected by the circumstances but it is unlikely that any child will not be affected in some way.

What do children need to help them come to terms with Separation and Divorce?

These are some of the key factors which may help children to understand, accept and come to terms with the circumstances they are facing. It is vital that at this most emotionally challenging of times that parents recognise their responsibility to their children and put their needs and feelings at the top of their list of priorities. Key factors that children need include :-

Being Heard Children do not just need to be listened to but also to feel that they are being “heard” and that their concerns are being addressed. They should be encouraged to ask questions and as far as possible to be given straight answers.
Being Loved At a time when their world is being thrown into turmoil, it is more important than ever that children know that they are loved by both their parents and that separation will not change that.
Feeling Safe Being safe includes both physical and emotional security. Issues around housing and finances as well as emotional needs should be addressed to help the child develop a sense of security about their future.
Be Informed Children should have access to age appropriate information to help them to understand and come to terms with what is going on. Both parties in any separation should strive to give consistent and appropriate information to children.
Stability Despite everything that is going on around them, children can still feel stable in the short and medium term, providing they are kept informed about what is happening and live in a secure atmosphere free from conflict.
Be Cared For Children’s basic needs should be at the top of the list of considerations for parents during a separation or divorce. Needs around children’s mental health, housing, schooling, nutrition, clothing and leisure should all be given the highest priority.

 

In summary, children can get through this traumatic experience without significant long term scars providing they are given adequate support from the start. It is fundamental that they are not used as pawns in the process and that both parents appreciate the potential long term effects of a divorce or separation on a child.

Children need to know that whatever happens, both parents will continue to love them unreservedly and will always be there for them. They should feel assured that important wider family relationships will continue and that whether they live in one or two homes they will belong and be cared for.

Consideration should always be given to external support agencies so that children can speak openly about their feelings without having to feel that they are taking sides. With care and consideration children do not need to be the innocent victims of divorce.

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