Gaynham King & Mellor Solicitors

Children matters

The law relating to children is primarily governed  by The Children Act 1989.

Parental Responsibility

Parental Responsibility is a legal term and is defined as all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to a child and his/her property.  Parental Responsibility is concerned with bringing the child up, caring for him/her and making decisions for him/her.  It essentially involves all those important decisions that a parent has to make on a day to day basis in respect of a child in their care.

Married parents will both automatically acquire parental responsibility for their child upon their child’s birth. An unmarried Father however will not have parental responsibility for a child born prior to the 1st December 2003 unless he has entered into a Parental Responsibility Agreement with the child’s Mother or has secured the benefit of a Parental Responsibility Order or Residence Order from the court.

An unmarried Father whose child is born on or after the 1st December 2003 will acquire parental responsibility only if he is registered as the child’s Father on the birth certificate.  If he is not registered as the father then he will not have Parental Responsibility and to obtain it will need to enter into a Parental Responsibility Agreement with the Mother or obtain a Parental Responsibility Order from the court in the absence of agreement with the Mother.

Resolving disputes concerning children

Unfortunately, from time to time, often as a result of parental separation, disputes will arise in relation to the children of the family.  The most common disputes centre around the child’s residence i.e. with which parent the child should live upon separation and contact i.e.how often and where the child should see the parent who is no longer living with the family.

Although parents should always act in the best interests of the child concerned and try, in the first instance, to reach some form of agreement with each other concerning matters relating to the children it is accepted that sometimes this is not possible and that it will be necessary to consult with a specialist family solicitor.
 
At Gaynham King and Mellor, we assess each case individually before agreeing any course of action with our clients and we will almost always initially try to negotiate an agreement with the other party by correspondence before considering or commencing court proceedings.

In some cases it may be that an application to court is the only means of resolving a child centred dispute but it is predominantly an option of last resort when all else has failed or urgent action is required.

The following four different Court orders can be made in relation to children under Section 8, Children Act 1989.

  1. Residence Order – an order which settles the arrangements to be made as to the person with whom a child is to live.
  2. Contact Order – an order requiring the person with whom the child lives to allow the child to visit or stay with the person named in the order.
  3. Prohibited Steps Order – an order preventing a parent from taking a particular step e.g changing the child’s school
  4. Specific Issue Order – an order giving directions for the purpose of determining a specific question that has arisen e.g at which school the child should be educated.

These orders provide a practical solution to problems which may arise during childhood but can only be made in respect of children under the age of 16, unless there are exceptional circumstances.

Welfare of the child

The welfare of the child is the court’s first consideration whenever it determines any question relating to a child’s upbringing. Therefore all other factors are judged by reference to how they affect or are likely to affect the child. Parental conduct is relevant only insofar as it affects the child’s safety or development or the parent’s capacity to look after the child.

In every case which is brought before the Court under the Children Act 1989 the court has a duty to consider whether it would be better for the child for there to be no Court Order made than for an Order to be made (known as the “No Order principle”).  This means that the court will not intervene and make an order unless it can be shown that there is a positive need and benefit to the child in doing so.

Preparation of a welfare report by the CAFCASS Officer

The court will often order the preparation of a welfare report in contested cases concerning children before making any decision as to what order, if any, should be made. This report will usually be prepared by an Officer of CAFCASS (Child and Family Court Advisory Support Service) and its purpose is to give the court more information about the child and his/her family circumstances.

The CAFCASS Officer will have access to the court file and where relevant other agency files such as social services and the police.  The CAFCASS Officer will interview the parties and the child as well as anyone else who might be relevant (teachers, doctors, grandparents etc). A written welfare report will be prepared which will include conclusions and recommendations as to which order should be made, if any.

A copy of the report will be lodged with the court and the parties are entitled to a copy.  The Court in making a decision is not duty bound to make the order or orders recommended in the welfare report by the CAFCASS Officer but the Judge is often likely to do so or is at least likely to rely heavily on the contents of the report and its recommendations when making any other order.

What a Solicitor can do for you

You will need to instruct a Solicitor who specialises in Family Law.  

At Gaynham King & Mellor all of our solicitors are experienced specialists in Family Law whose expertise has been recognised either through the acquisition of accredited specialist status with the UK’s leading family law group – Resolution, or through membership of the Law Society’s specialist Family Law and Children Law Panels

We act for both privately paying clients and those who are eligible for public funding (formerly known as Legal Aid).  In fact we are only one of two local solicitors practises who have been contracted by the Legal Services Commission to provide specialist Family Law advice.

Penrith Office