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CHILDREN MATTERS

The Children Act 1989 sets the law in relation to matters concerning children following a separation or divorce. The court process encourages parents to settle issues concerning where a child should live, how often they see the other parent and other relevant parenting issues.

Where an agreement on these issues is not possible then the Children Act 1989 is available to assist in determining a resolution.

The Law

What is parental responsibility?

Section 3 of the Children Act 1989 defines parental responsibility as: “All the rights, duties, powers, responsibility and authority which by law a parent of a child has in relation to the child and its property”.

This means that each parent has the rights and abilities to be part of the decision making in relation to matters concerning their children. The Children Act promotes the best interest of the child as its primary aim and consistent with this is for each parent to respect the other’s parental responsibility and undertake a co-parenting role post-separation.

In reality this ideal is much harder to achieve. If you are experiencing difficulties in reaching an agreement on issues concerning your children then there are provisions in the Children Act which may help you find a way to resolve the conflicts.

Often there can be disagreement on issues such as: a child’s upbringing; selection of school, whether the child meets their parent’s new partner; whether the child moves to another part of England and Wales; taking a child overseas for a holiday or to live; and medical treatment. There is case law in place that can help guide you to work towards a mutually acceptable agreement.

Where mediation, discussions or a collaborative family law effort does not resolve the dispute, it is possible to make an application under the Children Act for the court to determine the issue.

If you have an issue that is troubling you in connection with any matter concerning parental responsibility, or how to resolve a conflict with your child’s parent on an issue of their life, we can advise you of the law relevant to your situation and how you can seek to resolve the dispute. This information will aid you to try and obtain a resolution without the need for court intervention. However, if court intervention is needed, we can help direct your case and the evidence needed for a successful conclusion to the dispute.

At our free initial meeting, we can evaluate the dispute and give you pragmatic advice on attempting to seek resolution in the first instance. An indication can be given at the first hearing of the likely costs. We may also be able to offer fixed fees for sections of the proceedings.

Residence Orders

A residence order is the name given to a court order determining who your child lives with following separation or divorce. The underlying basis for a need to identify one main home is to allow a child to settle in one place as his or her home. The Children Act encourages an agreement on this issue of the main home and where an agreement is possible there is no need to make any application to the court.

Where there is a disagreement on where your child should live, we can recommend solutions that may aid a mediated agreement. If an agreement is not possible then we can assist in preparing your case and, in the event that court action is necessary, we have the relevant expertise to help present your evidence to ensure the judge understands your perspective clearly.

Contact Orders

Following a determination of where your child lives, further questions that require answering are when and for how long your child shall have contact with the parent they do not share their main residence with.

The case law under the Children Act promotes contact as being in a child’s best interest. There will be cases when contact has to be conditioned to suit the needs of a child. Each case is considered on its own merits.

The legal process provides a number of options that aid the development and progress of contact in cases where support is needed. For instance, contact can be arranged at a contact centre. There may be a local facility near you and, as these are generally run by volunteers, they may either be free of charge or will have a nominal registration fee. The purpose of a contact centre is to provide a neutral venue for contact supported by the presence of a volunteer. They provide a child friendly venue for the start-up of contact. The visits can remain at these centres for any length of time to allow both parties to rebuild trust and provide a foundation for contact then progressing successfully away from the centre. We can help find a local volunteer run centre if it would assist you to progress contact in a supported forum.

Some situations will need initial supervised contact visits. This would provide for actual supervision of the contact session by a qualified professional. These sessions can often cost £75 - £100 per hour. They are normally used for a short term period to provide supervision on the child’s post separation relationship with the parent they do not live with and detailed notes of the visit are made to assist the development of trust between the parents.

Often where supervised visits are initially needed, the contact sessions will progress to supported contact at a contact centre before moving to a more natural arrangement.

We can help locate privately funded supervised centres local to your needs.

Moving to another part of England and Wales.

The parent with main residence can elect to move to another part of England and Wales without needing the written consent of the other parent or order of the court. This is known as internal relocation of your child.

The Children Act places a responsibility on the resident parent to notify and keep the other parent informed of such decisions, but the current law allows the resident parent to make the move to anywhere in England and Wales without needing the consent of the other parent.

The other parent may have a remedy under the Children Act by seeking a prohibition – a form of injunction – to prevent the resident parent from moving without the court’s permission. Such an injunction would require court proceedings.

In any proceedings, the resident parent would need to convince the court that their plans were stable, definite and in the child’s interest. Very careful thought would have to be given to the arrangements for contact with the other parent.

The non-resident parent’s only hope in preventing the move is to challenge the evidence presented by the resident parent. The court would need to make a decision and their primary concern would be whatever was in the best interests of the child.

Currently the law is finely balanced and will depend almost exclusively on the facts of your case and the merits for and against the move. The law on this issue has changed in recent years and is now reflected in the two cases of Re F [2010] EWCA 1428 and R L (A Child) (Internal Relocation: Shared Residence Order) [2009] EWCA 20.

Having undertaken a number of cases in this area we can provide you with guidance on the evidence you need to present your case clearly and succinctly in order to present or oppose the move.

Removal from the Jurisdiction

There is a gap in the law relating to removal of a child from the jurisdiction. Section13 of the Children Act provides:

“Where there is a residence order in place then no person shall remove the child from the jurisdiction of England and Wales without the written consent of every person that does have parental responsibility or order of the court”.

The parent who has the benefit of a residence order is only permitted to take their child out of the jurisdiction of England and Wales for a period of up to 4 weeks.

This part of the Children Act implies that it is only when a residence order is in place that written consent of the other party is needed. However, the law now makes it clear that, irrespective of whether there is a residence order in place, a child cannot be moved to live or holiday in another country for a period in excess of 4 weeks without the written consent of every person with parental responsibility or an order of the court.

The law on this type of case, typically known as a “leave to remove” case, has evolved over the last few years. In the case  Poel v Poel [1970] 1 WLR 1469 the mother was allowed to take her three year old child to New Zealand to live with her new husband. The court took the view that following separation if it was established that the child lived with the mother then the court would be reluctant to interfere with life choices the mother seeks to make. This type of decision making was further endorsed in the case of Payne v Payne [2001] 1 FLR 1052 in which the court allowed the mother to return to New Zealand with the child and placed a reasonable consideration on a happy mother leading to a happy child criteria. 

In the last few years, however, there has been a shift in the court’s treatment of leave to remove cases. The court is now more willing to give greater consideration to the child’s need to have meaningful contact with the parent remaining in England and Wales, and the extended family.

The courts have become stricter in testing the resident parent’s request and evidence and, in particular, the clear and cogent plans for the child maintaining a relationship and contact with the family based in England and Wales.

Any parent wishing to move abroad with a child should seek legal advice on the evidence they need to place before the court in support of their application. With the tougher regime in granting leave, the evidence required to succeed has to be very well considered and presented and each aspect of the move, the practicalities, the funding and the contact plans need to be reflected and articulated. The plans need to be supported by factual evidence. 

Any parent wishing to oppose such a move will need to respond purposefully and raise credible objections supported by evidence.

Mills Chody have represented parents both making and opposing applications for leave to remove from the jurisdiction and can advise you on how best to present your case.

Court action

Every parent will agree that it is in a child’s interest for its natural parents to agree the issues relating to it but, where an agreement is not possible on any matter, we can advise you on court proceedings. Our dedicated family law team has extensive expertise in all areas of children law.

We can offer you reliable advice on parental responsibility, residence and contact. Our primary intention is to assist you in resolving the issue without the need for court proceedings. However, if that is the only step available to you then we have the expertise and knowledge to guide you and your evidence to ensure the best possible outcome.

If you wish to speak to one of our family law specialists, please call us on 020 8909 0400.

NB This is a general summary of the law as at the date of creation of this page. It should not replace legal advice tailored to your specific circumstances.