When couples separate it can be a very stressful time particularly where children are involved. Ideally parents should make decisions between themselves as to what is best for the child after separation. Mediation is a process where parents can be assisted by an independent third party and enables you to reach your own decisions about the arrangements rather than having a judge decide for you. If you cannot agree the arrangements then it is important that you receive legal advice and it may be that a court order is the only route of resolving family conflict.
There are various court orders available dependent upon the circumstances of the matter. The court will make most decisions concerning children disputes in private law using the law contained within the Children Act 1989.
Should you wish for the court to make an order concerning a child or children, you must apply to the court to make such an order. You will then be known as the ‘applicant’ in the proceedings.
On receiving your application, a judge or a legal advisor and a panel of magistrates will hear your application and make an informed decision based upon the evidence placed before it.
The family court makes decisions based on what is in the child’s best interests, and this is the court’s paramount concern throughout. The court will also have regard to the “welfare checklist” which is a set of criteria the court must consider.
The court must also consider if making an order is better for the child than making no order at all. In children matters there is a general principle that it is preferable for matters to be resolved by agreement without needing to resort to a court order. The court will only make an order if it considers that doing so would be better for the child than making no order at all. This is known as the ‘no order principle’.
Who can apply for a Children Act order?
In order to issue an application for a Children Act order without the court’s permission to do so, you must have parental responsibility for the child or children.
Parental responsibility is defined as:
“all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.
In the event you do not have parental responsibility of the child or children, for example you are a grandparent, you will need to apply to the court for permission to make an application for a Children Act order.
What kind of matters does the family court deal with and what order may I be seeking?
Child arrangements order
A child arrangements order is an order that decides the arrangements for whom a child is to live with, spend time with or otherwise have any contact with. This can include the parents of the child or any other person. In the past these orders were known as “residence” and “contact” orders and “custody” and “access” arrangements.
An example of this order in practice may include if your child lives with your ex-partner and you wish the court to make decisions concerning when you see your child.
Specific issue order
A specific issue order is an order that will determine a specific question that has arisen or may arise in connection with the exercise of parental responsibility for a child.
This order can resolve any issues concerning the child’s upbringing. Examples of this could include whether the subject child should attend a state school or be privately educated and issues concerning the child’s religious belief or practice.
It may also be used to resolve disputes concerning a child’s name or whether a child should or can be taken out of the country.
Prohibited steps order
A prohibited steps order is an order which provides that no step shall be taken by a person concerning the parental responsibility of a child without the court’s consent or permission to do so.
An example of this in practice may include if you have concerns about your ex-partner removing your child from the country or from their nursery/school and you want to prevent this.
In certain circumstances, it may be necessary to make an emergency application to the court.
A specialist within this area of law will be able to assess the circumstances of the matter and assist you in your application to the court.
Should you require any assistance with your children dispute, Stephenson’s may be able to assist you. We have specialist accredited lawyers dealing with all aspects of family law including divorce, financial and property issues following relationship breakdown, child care proceedings, domestic abuse, adoption, parental abduction and disputes relating to children - residence and contact.
Call our family law team today on 01616 966 229.
By Jackie Price, senior associate solicitor and Danielle Leigh, graduate paralegal