Personal: Children issues

Most parents would agree that the interests of the children should be safeguarded in the event of a separation or divorce. However there are sometimes disputes and the courts have powers to resolve them.

Commonly disputes relate to where a child should live or contact with the parent whom the child is not living.

There may be issues concerning the upbringing of the child and whether for instance one of the parents should be entitled to permanently relocate the child abroad.

Davies and Partners recognise the sensitive and important nature of issues concerning children. There are often several options in resolving children issues such as negotiation, round table meetings, mediation, collaborative law, and the last resort should be the Court. However some cases require urgent action and going to Court may be advisable.

The Courts have a menu of different types of orders namely residence orders, contact orders, specific issue orders and prohibited steps orders.

Factors which the Court take into account when considering applications relating to children are set out in Section 1 of the Children Act 1989 which says that: -

(1) When a court determines any question with respect to—
(a) The upbringing of a child; or
(b) The administration of a child's property or the application of any income arising from it,
The child's welfare shall be the court's paramount consideration.

(2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

(3) In the circumstances mentioned in subsection (4) [not reproduced here], a court shall have regard in particular to—
(a) The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) His physical, emotional and educational needs;
(c) The likely effect on him of any change in his circumstances;
(d) His age, sex, background and any characteristics of his which the court considers relevant;
(e) Any harm which he has suffered or is at risk of suffering;
(f) 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;
(g) The range of powers available to the court under this Act in the proceedings in question.

In disputes between parents the Court often requests independent help from Cafcass which is a non-departmental public body independent from the Courts and Social Services. Cafcass can be called upon to prepare a report setting out the background of the case and usually make recommendations in light of the factors set out in Section 1 of the Children Act above.

Sadly disputes can arise concerning children particularly when emotions are running high. Thankfully in the long term most willing parents maintain a good relationship with their children. Parental communication and cooperation is important to achieve the best outcome for the children.

Parental Responsibility as a matter of law is a bundle of rights and responsibilities which a parent has or may require in respect of a child. Married couples have joint parental responsibility in respect of their children. An unmarried mother has parental responsibility for her child. An unmarried father does not automatically have parental responsibility, unless he registers the child's birth with the mother after 1st December 2003. Further a father can gain parental responsibility by entering into parental responsibility agreement with the mother or obtaining a Court order.

There are many fathers who enjoy a good relationship with their child (and the child's mother) but have no idea that they do not share parental responsibility with the mother. This could give rise to difficulties. For example the father could not give medical consent to treatment. Davies and Partners are experienced in advising parents on all issues relating to children.

Financial support for the children

If you need financial support for children you can apply to the Child Support Agency for an assessment or you can try to agree on a level of maintenance on a voluntary basis with your ex partner

You can make an application for lump sum and property adjustment orders in relation to children under the Children Act 1989. The Court has the power to make capital available for specific needs of a child which are not catered for by regular maintenance. Further the Court can make a property adjustment order.

Child provision example: -

A couple live together for 10 years. They do not marry and have a child of 6 years of age. The couple separate. They jointly own the property in which they lived. The woman remains living in that property with the child. A Court could order that the home shall remain a home for the child (and therefore the mother) until the child is independent and at that stage the property will be sold (unless one party can "buy out" the other person's share). The individual facts of the case affect whether this is likely outcome.

Davies and Partners have considerable experience in giving clear advice to unmarried couples who face challenging times. Where there are children we consider whether it is appropriate to make an application under Schedule 1 of the Children Act 1989.

If you wish to discuss matters with one of our team concerning your situation please do not hesitate to contact us on This e-mail address is being protected from spambots. You need JavaScript enabled to view it or telephone us. Click here for our contact details.