When a relationship breaks down, it is critical that issues relating to any children are handled with the utmost care and sensitivity. The courts encourage parents to try to agree the arrangements between them. Failing this, if parents can't reach agreement, then the courts have wide-ranging powers to intervene in the best interests of the children.
Residence Order – a Residence Order determines who a child shall live with; shared Residence Orders are possible in some cases.
Contact Order ‒ a Contact Order requires the person the child lives with to allow the child to visit or stay with a person named in the order, or for that person and the child to have contact with each other. Contact can include indirect contact by way of telephone calls or letters, etc. Contact Orders can contain conditions and limitations.
Specific Issue Order ‒ a Specific Issue Order details specific aspects of a child's upbringing or of parental responsibility. For example, it can determine which school a child should attend, what religion a child should be brought up in, whether a child should undergo an operation or change his/her name, and other major issues concerning a child’s life.
Prohibited Steps Order ‒ a Prohibited Steps Order prevents someone from doing something which they could normally do within the exercise of their parental responsibility. For example, they can be prohibited from allowing a child contact with a particular person, from visiting a child at school, or from removing the child from the jurisdiction (temporarily or permanently).
Guardianship ‒ the Court can appoint a guardian for a child if no-one has parental responsibility for them, or if someone with a Residence Order in respect of a child has died. The appointment of a guardian can be made under a Will, but this only takes effect on the death of the last person with parental responsibility for the child or of the person with a Residence Order.
Emergency issues ‒ it is possible to issue applications to the Court without notifying the other party in urgent cases, such as child abduction
Financial provision for children ‒ where unmarried parents separate, an application can be made for a Financial Order under Schedule 1 of the Children Act 1989 for a lump sum and/or a property adjustment order for the benefit of the child. For example, a parent may be able to apply for a lump sum to buy a house for the child to live in. The range of powers available to the Court is much more limited than those available for children of married parents. Any order must be for the benefit of the child.
Adoption ‒ private adoption includes adoption of a child by a step-parent or a family member, inter-country adoption of a non-related child and adoption on a private basis.
Domestic violence ‒ emergency steps can be taken to prevent physical harm to a family member. The Court has wide-ranging powers to make non-molestation and occupation orders to protect against physical harm and harassment.
Why does the Court get involved?
Most of the law relating to children is primarily governed by the Children Act 1989 and subsequent legislation. The thinking behind the Act is that when parents separate, they remain parents to their children and it is their responsibility to make suitable arrangements. The Court only gets involved when the adults who are responsible for decision-making are unable to agree on what is best for their children. The Court will not make any order unless it considers intervening to be in the best interests of the child.
What does the Court consider when reaching a decision?
The Court has to consider several criteria set out in the Children Act. The Court must take the welfare of the child as its paramount consideration, meaning any decision should be taken based on what is best for the child. The Court will not make an order unless there is a positive benefit to the child in making an order.
In considering what is best for the child, the Court has to consult the “welfare check list”, which is guidance set out in the Children Act. The Court must take account of all of the factors in the welfare checklist, but does not have to give them all equal weight.
The role of the Children and Family Court Advisory & Support Service (CAFCASS) is to assist the Court by providing a fuller picture of a family's circumstances, helping parents reach agreement about their children and making recommendations to the Court about what would be the best outcome for the children. Judges do not normally see the children with the family and probably will not meet the children during the Court case, so rely on the CAFCASS officer for further details about the situation. The CAFCASS officer will interview the parents and will meet with the children. They will try to ascertain the children’s views and wishes, as well as the circumstances giving rise to the case. The CAFCASS officer will report on the home conditions and provide any other information that may be relevant for the court. They will usually contact the child’s school for further information. The CAFCASS officer will then write a report for the Court. Their views and recommendations are very important to the Court because they are independently appointed to assist in decision making.
Can a Court order be changed?
All orders relating to children can be changed at any time, and the court will simply decide whether or not it is in the best interests of the child to change the order. Orders will only change on an application by someone entitled to apply to the court. If the parents have been able to agree changes amongst themselves, it is still sensible to refer the matter back to the Court to obtain a changed Court Order. Otherwise, if the agreement breaks down the position is as stated in the Court Order.
In principle, the primary career of a child is entitled to receive child support from the other parent. This can be agreed between the parents; if they cannot agree, either can apply to the Child Support Agency (CSA) for a child maintenance assessment. The CSA has jurisdiction to make an assessment (which can only be varied by agreement between the parties or by a Court Order) that is binding on an absent parent and can be legally enforced.