Children Matters - Frequently Asked Questions

1. What is Parental Responsibility?

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 includes the right to decide where a child lives. A person with Parental Responsibility cannot surrender or transfer any part of that responsibility. It is possible for people with Parental Responsibility for a child to act alone and without the other in meeting that responsibility. However, any major decisions affecting the child’s upbringing should be made with others who have Parental Responsibility for the child.

2. Who has Parental Responsibility for a child?

The mother of a child automatically has Parental Responsibility irrespective of her marital status. A father who was married to the mother at the time of the birth of the child, or who subsequently marries the mother, will also automatically have Parental Responsibility. Where a father is not married to the mother, he will still automatically have Parental Responsibility for the child if he is registered on the child’s birth certificate as being the father (this only applies to a father of a child born after 1st December 2003). If an un-married father does not have Parental Responsibility it is possible to obtain Parental Responsibility by making a Parental Responsibility Agreement with the mother, or by applying to the Court for a Parental Responsibility Order, or by obtaining a Residence Order. Where Parental Responsibility is obtained by an Agreement or an Order of the Court, the Parental Responsibility will automatically end upon the child attaining the age of 18.

3. What do we do about where the children are to live if we separate?

Parents are encouraged to reach agreement between themselves as to the arrangements for their children’s care. This can be achieved direct or with the assistance of mediation or indeed negotiation between solicitors. If an agreement is reached, it is not usual practice for this to be formalised by way of a Court order and indeed there is a ‘no order’ principle enshrined in the Children Act 1989 which requires the Court only to make an order where doing so would be better for the child than making no order at all.

If it is not possible for an agreement to be reached regarding the arrangements for the children’s care, it may be necessary to apply to the Court for an order to be made.

4. What Factors Will The Court Take Into Account When Making an Order?

Where a Court is asked to determine any question in respect of the upbringing of a child, the child’s welfare will be the Court’s paramount consideration. A Court will have regard to certain factors when it is considering whether to make, vary or discharge a Section 8 Order and these factors are as follows:

  • the wishes and feelings of the child concerned (in the light of his/her age and understanding);
  • the physical, emotional and educational needs of the child;
  • the likely effect on the child of any change in their circumstances;
  • the age, sex, background and characteristics of the child which the Court considers relevant;
  • any harm which the child has suffered or is at risk of suffering;
  • how capable each of the child’s parents, and any other person in relation to whom the Court considers the question to be relevant, is at meeting the child’s needs;
  • the range of powers available to the Court under the Children Act in the proceedings in question.
5. What is the role of the CAFCASS Officer?

CAFCASS stands for Children & Family Court Advisory and Support Service. The CAFCASS Officer can inspect the Court file and will have copies of all the statements and applications filed in relation to the children. They will therefore be aware of the issues between the parties and provide a safeguarding letter to the court and can prepare a welfare report at the request of the court. The Officer will see both parties, usually in their own home, with the children and will also see them without the children present. The Officer is also able to see children on their own if they are old enough for this to be useful. An Officer can also make further enquiries if they seem to be appropriate in a particular case, for example they can visit the children’s school, interview other relations of the children and can contact Social Workers if they have been involved the family. A CAFCASS Officer may also meet with the child’s General Practitioner. The Officer can then prepare a lengthy report based on his investigations and make recommendations to the Court as to the outcome, for example, how many hours of contact he would recommend and whether contact should be supervised or unsupervised in respect of the Contact Order.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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