When parties are unable to agree, provided they satisfy certain procedural requirements, they will have recourse to the Courts to help them come to an agreement.
Parents can make applications to the Court under Section 8 of the Children Act 1989 for various Orders, some of which are:
Parental Responsibility Order
Specific Issue Order
Prohibited Steps Order
Child Arrangements Order
A court will only make an order if it thinks that would be best for the child and will look at what is called the welfare principle.
The Welfare Principle
When a court determines any question with respect to the upbringing of a child the child’s welfare is always the court’s paramount consideration (Children Act section 1).
This involves the Court having regard to:
The ascertainable wishes and feelings of the child concerned in light of his age and understanding;
His physical, emotional and educational needs;
The likely effect on him of any change in his circumstances;
His age, sex, background and any characteristics of his which the Court considers relevant;
Any harm which he has suffered or is at risk of suffering;
How capable each of his parents are of meeting his needs;
The range of powers available to the Court in the proceedings.
Some people have the right to apply for an Order, and some people must first get the permission of the court to make the application.
Parental Responsibility (PR)
Parental Responsibility is defined as all the rights, duties, powers, responsibilities and authorities which by law a parent of a child has in relation to the child and the child’s property ( Children Act 1989).
Mothers automatically have PR. If the father is married to the child’s mother at the time of the child’s birth he too will have PR. Unmarried fathers will only have automatic PR if the child was born after 1st December 2003 and the fathers name is on the birth certificate.
An unmarried biological father can acquire PR by entering into an agreement with the mother of his child, by making an application for a Parental Responsibility Order to the Court, or by subsequently marrying the biological mother of his child after the birth.
Other people can also acquire PR for your child, including stepparents, grandparents, or same-sex partners.
If you have PR your most important roles will be to provide a home for the child and to protect and maintain the child.
When parents are separated, they do not lose PR. A separated parent will have to be included in any important decision about the child. This does not apply to routine decisions and consent will therefore not be required for day to day routine matters. If it transpires that you cannot agree with respect to a major decision, like which school the child should go to, any major medical treatment, leaving the country/moving away or changing the child’s name/surname for example, you can apply for a Specific Issue order or Prohibited Steps order to the Court. The Judge will then make a decision which is your child’s best interests.
Specific Issue/Prohibited Steps Order
A specific Issue Order is essentially an order sought from the family court to determine a specific question which has or may arise in connection with any aspect of parental responsibility for a child, where the parents with PR are unable to agree. For example, you may wish your child to go to a particular school, have a particular medical procedure/treatment or change their name.
A Prohibited Steps Order on the other hand is an order granted by the court in family cases which prevents either parent from carrying out certain activities or events with their children without the express permission of the other parent, for example to prevent them from changing the child’s surname or removing them from the country.
Child Arrangements Order
Having PR does not give an absent parent an automatic right to spend time with the child.
A Child Arrangements Order is an Order that regulates with whom a child is to live, spend time or otherwise have contact with any person.
A child’s mother, father or anyone with PR can apply. Other people, like grandparents, can also apply but they will need to get permission from the Court first. You must show you have attended a meeting about mediation first, except in certain circumstances (for example in cases of domestic abuse).
To make any of the above applications, you fill have to fill in a form called C100 Court form. The original form, together with 3 copies and the fee is then sent to the nearest court that deals with cases involving children. If you do not have parental responsibility, you will also need to file a Form C2 for permission to apply for a Children Act 1989 order.
Once the application is issued CAFCASS ( Children & Families Court Advisory and Support Service ) will start making some basic safeguarding enquiries and you may receive a phone call from them. This is followed by a first hearing is called a First Hearing Dispute Resolution Appointment (FHDRA). The parties will be encouraged to resolve the matter by agreement. If this proves unsuccessful, the District Judge will make directions to progress the case to a fuller hearing and may require CAFCASS to prepare a report on the issues at hand. If there are factual disputes the Court may decide to deal with those first and set a Fact Finding Hearing. Once the Court is satisfied with the facts, a Dispute Resolution Appointment is set, which considers the recommendations from CAFCASS and a further opportunity is given to the parties to resolve matters. If matters are not agreed, the case will go to a Final hearing and each party will give evidence under Oath and the recommendations of the Cafcass officer will be considered carefully. The Judge will then make his decision.
It is also worth noting, once you have an Order, it can be varied or enforced by making an application to the Court. Even if an order is proved to have been broken if there is a 'reasonable excuse' this will be considered by the Court. Although each case will depend on the facts, for example, not sending your child because of self-isolation etc, is likely to be a reasonable excuse for not sending a child to contact / back to the other parent. In those circumstances, the parent breaking the Order must still show reasonable steps to minimise the impact, for example, utilising video/telephone contact instead. Alternatively, it may be that the current Order is no longer practical to follow, in which case the application to vary the Order can be made.
In any application or decision, the Court makes, the point to always bear in mind will be the welfare of the child will be of paramount consideration.
To discuss these or any other children or family issues, please contact Shahzea Tahir on firstname.lastname@example.org or visit Rights of Women website on www.rightsofwomen.org.uk for further details on our free confidential adviceline for women.