Disputes about Children
The Courts have a number of powers available to deal with issues concerning where the child should live, contact and how the parents exercise their responsibility. These proceedings can be emotional and bitterly contested involving issues such as parents maintaining contact.
However, please note that attendance at a family mediation information and assessment meeting (MIAM) is compulsory before an application in private law proceedings relating to children may be issued unless an exemption (i.e. in respect of domestic violence) or a mediator’s exemption applies.
Child Arrangements Orders
- Where a child shall live
As the title suggests this involves the Court directing the residence of the child. In a case where it is ordered that the child live with a parent who does not have parental responsibility the effect is to give that person parental responsibility.When making an order, the child’s welfare is the court’s paramount consideration and as outlined above, the court will take into account the statutory checklist. A child arrangements order can be an application by a parent or can be ordered by the court in family proceedings relating to the upbringing of the child. The court will not make a child arrangements order for a child who is 16 unless the circumstances are exceptional (i.e. the child suffers from a disability).
- Issues of child contact
A Child Arrangement Order will typically deal with when and with whom a child should have contact. A presumption of the law is that it is the child’s right to have contact. While the Court expects parents to resolve issues around this and to show flexibility it will intervene (upon a parent’s application) if necessary. It should be noted that the presumption about right to contact does not include adult children.Contact may be direct such as in the form of visiting or staying with a parent indirect such as by telephone calls, emails or letters. An Indirect Contact Order can be made where it is not suitable or appropriate for the child to be seen directly by the parent. Where there is risk to the child supervised contact may also be ordered. In most cases an Order is made or “reasonable contact” is usually direct. Where difficulties arise the Order may be more prescriptive about the times and places. Sometimes disputes arise about matters such as where the child should be at a particular time such as Christmas or during school holidays
Child contact centres
It may be necessary for child contact centres to be used where careful reintroduction of the child is necessary or there are security issues. These take place in a variety of neutral community venues with facilities allowing children to develop and maintain relationships with parents they are not living with or with other family members. The following basic principles should be followed:-
- Impartiality, staff and volunteers available for assistance;
- Monitoring or a valuation of individual contacts, conversations;
- Several family meetings together in one or a number of rooms;
- Families encouraged to develop trust and consider family venues.
A minority of child contact centres offer supervised (as opposed to supported) contact.
Parental contact and human rights
The Human Rights Act 1998 has been used by unmarried fathers to overturn a Court’s refusal to grant contact. They have used the principle of the right to family life. The human rights have upheld principles that the interests of the child will predominate.
Child arrangements and domestic violence
As a result of the difficulties raised by the issue of one party alleging that contact is used as a device to continue domestic abuse of the other parties stating that the allegations are being made to prevent contact a report was commissioned. The report was prepared by Doctors Sturge and Glazer.
The report expressed concern about the reluctance of Courts to deal with issue of domestic violence seeing them as issues between the parents.
The Courts should adjudicate on the issue. It is not automatic that proof of domestic violence is a bar to contact. It is a factor to be taken into account when the Court applies is discretion about contact and the Court has to weigh up factors such as the seriousness of the violence, the risk involved and the impact on the child and the positive factors arising from continuing contact with the offending parent’s awareness, and giving up the need to change will be a consideration. Again, the welfare of the child is paramount having regard to the general principles set out in the legislation.
Activity directions and conditions
These were introduced by the Children and Adoption Act 2006 in response to the difficulties Courts were having in enforcing Orders through use of contempt of Court laws.
Activity directions require the parent in question to take part in an activity to help establish, maintain or improve that parent’s involvement in the life of the child. These can include directions to participating programmes, classes and counselling or guidance to assist the person in establishing, maintaining or improving involvement in the child’s life or addressing the parent in question’s violent behaviour. Directions can also include sessions in which information or advice is given regarding operating arrangements for involvement in a child’s life including arrangements for mediation. A report will often be required.
Activity conditions may be attached to a final Child Arrangements Order.
It should be noted that any provision for an activity direction will take into account the welfare of the child. It would not be made unless there is a dispute regarding provision of a Child Arrangement Order.
A CAFCASS officer may be asked by the provisions of the Child Arrangements Order to monitor the compliance and report on it. A warning may also be attached to the Order. There is also provision for an unpaid Work Order to be imposed upon a party who breaches a Child Arrangement Order.
Removal from the jurisdiction
Where there is a Child Arrangements Order in place written consent of every person with parental responsibility must be obtained.
If the proposed removal of the child is for them to permanently live elsewhere, then in the absence of the parents’ consent, the Court’s permission will be required. The child’s welfare will be the court’s paramount consideration when considering an application for relocation, and will likely have close regard to the welfare checklist (although not obliged to follow this). The Court will consider the reasons for the move and the plans for contact between the remaining parent and child. In applying the paramountcy principle, the court will distinguish between applications to remove a child outside of the jurisdiction and those within the jurisdiction. As human rights issues are raised by a proposal to remove a child from the jurisdiction the Court has to balance the rights of the parties. The application of human rights principles is controversial in this area of law.
There is no difference in principle between those cases where a parent wishes to improve their lifestyle and cases where a party wishes to return to their home country, or situations where there is an employment opportunity for a family member. The court will apply the same principles. Having said that, the bar is set lower when the application involves a primary carer wishing to return to his or her home and the relocation therefore involves an entirely familiar environment (in contrast to a party following a dream to relocate to say, Australia).
The court will carefully consider applications where the primary carer has remarried and the primary carer wishes to move the family to live in the country of origin of the new spouse. The impact of a refusal in these circumstances must be given serious consideration.
The most successful oppositions of applications for leave to remove are in cases where it can be shown that the motivation to relocate is either a wish to deprive the remaining parent of contact or, where the proposals are not properly planned and supported with evidence.
Specific Issue Orders
Specific Issue Orders allow for the Court to make a determination where the parents cannot resolve an important issue for the child’s upbringing. An example could be where one person wishes the child to be brought up as a Catholic and one a Jew. In such a situation the Court could order that the child is exposed to both religious cultures until such time as they are able to make up their own mind as to which to follow.
Another example could be the change of name of a child. A proposal to change a surname of the child is considered a serious issue which, in the absence of agreement, should be referred to a Court for determination. There are various guidelines in force concerning the naming of a child:
- Where the parents are married they both have the power and duty to register their child’s name;
- Where the parents are unmarried only the mother has the power and duty to register the name;
- If a child arrangements order is granted and a new person wishes to change the child’s name permission must be obtained from the Court or the written consent of all parties be given;
- If there is no child arrangements order in place written consent of the child’s parents or a court order will be required;
- The welfare of the child is of course paramount in making any order;
- The Court will take into account the registered surname and the reasons for that registration but other factors can be taken into account;
Prohibited Steps Orders
This type of Order may be granted to prevent a particular step such as taking the child to live outside the UK.
Prohibited Steps and Specific Issue Orders can only be made for children up to the age of 16.
Special Guardianship Orders
Special Guardianship Orders are in place to allow for a child to be cared for by someone other than their parents. Such an Order avoids the need for care proceedings. This is not the same as adoption as the legal link between the child and their parents is preserved. A Special Guardian is someone other than the parent of a child. The Guardian can act to the exclusion of anyone else who has parental responsibility but not for major decisions such as in relation to changes in education or immunisation. The local authority has an obligation to put in place guardianship support services including counselling advice and information.