Child Law

Parental responsibility is the legal terminology for all the rights, duties, powers, responsibilities and authority which under English law a parent has in relation to their child.

Where a child’s parents were married when the child was born they both have parental responsibility for the child. Where they were not married the mother will have parental responsibility and the father will also have parental responsibility if he has acquired it. A father can acquire parental responsibility:

  1. if his name is placed on the birth certificate at the time of registration of the child’s birth or
  2. if he and the mother enter into a written agreement to this effect, (this is known as parental responsibility agreement) or
  3. he applies to the court and the court makes an order that he shall have parental responsibility.

Where parents have joint parental responsibility for their children, this will still remain the position if they divorce or separate – They will however need to decide on the future day to day arrangements for the children.

Generally issues relating to these arrangements are often more effectively resolved through discussion and agreement by parents. Where parents need help with working out the future arrangements for their children, mediation may be a very useful option for them. In mediation couples work with a mediator who is neutral and will not take sides. Mediation helps couples to explore and examine the issues relating to the future arrangements for the children with a view to finding solutions. Mediators do not give advice and do not impose terms. For more information please see the mediation services page.

If parents are not able to reach agreement direct over issues in respect of their children they are entitled to apply to the court for a judge to decide. The court however requires that before issuing an application that each parent, except in certain specified circumstances, gives full consideration as to whether mediation or other forms of alternative dispute resolution may be suitable for their case and attends an assessment meeting with a mediator, either on their own, or with their spouse or partner to find out more about the mediation process. The court has issued a “Pre-Application Protocol” setting out what is required. For more information please see the mediation information and assessment meetings article in Resources.

The court can make orders:

  1. setting out which person the children is to live with. These are called residence orders.
  2. requiring the person with residence to allow the children to visit or stay with another person or to have contact with them. These are called contact orders
  3. requiring a person not to take certain steps with regard to the arrangements for a child. This is called a prohibited steps order
  4. determining a specific issue which has arisen in respect of with any aspect of parental responsibility for a child. [For example with regard to which school a child should attend or their religious upbringing]. This is called a specific issue order.

Where children spend periods of time living with both parents, the court can make a joint residence order, setting out the time the children spend in the different households.

When a court determines any question with respect to the upbringing of a child the child’s welfare shall be the court’s paramount consideration.

What factors will a court consider regarding issues relating to children?

The court will have regard to all of the circumstances and in particular the following:

  1. the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)
  2. his physical, emotional and educational needs
  3. the likely effect on him of any change in his circumstances
  4. his age, sex, background and any characteristics of his which the court considers relevant
  5. any harm which he has suffered or is at risk of suffering
  6. how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs
  7. the range of powers available to the court

How to decide on the future arrangements for the children can be challenging and difficult. There are many excellent resources for parents to help with these issues. The Resolution website has a designated section for Advice for Parents which includes helpful tips, recommended reading and on-line resources. Resolution is a national body of family lawyers committed to the constructive resolution of family disputes.

To contact Kim Finnis call 01483 539100.