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Private Children Notes

LPC Law Notes > Family Notes

This is an extract of our Private Children document, which we sell as part of our Family Notes collection written by the top tier of Cambridge And Oxilp And College Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Family Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Private Children

1) Identify the individual issues

1) Residence

E.g. Divorcing and want to have residence with the child

2) Contact

E.g. Divorcing and orders are being made as to the children

E.g. Divorced, made their own arrangements as to children, however one party is not happy / one party not keeping to arrangements

2) Can the parties resolve the problem?

3) Holidays

E.g. There is no residence order but wants to take child on holiday

4) Change of name

E.g. Wants to change the child's surname

Talking between them, negotiation, mediation / mediation assessment meeting (required before issuing proceedings - need FM1 form)

No - May wish to apply to court for a s.8 order

3) Who has parental responsibility?

1) What is parental responsibility?

"All the rights, duties, powers and responsibilities and authority which by law a parent of a child has in relation to the child and his property" - s.3(1) Children Act (CA) 1989

Each parent may exercise parental responsibility as they see fit and may act independently in the best interests to the children.

If each parent cannot resolve a disagreement between themselves they can make an application to court for a s.8 Specific Issue Order to decide the issue

Examples of these rights include:

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To care for the child;

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The obligation to maintain them financially;

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To protect the child from harm

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To make decisions about the child's welfare including their religion and medical decisions

2) Who has parental responsibility?

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Can be more than one person

Mother

Automatically has parental responsibility
- s.2(1) CA (if married to father) or s.2(2)(a) (if not married to father)

Father

Automatically has parental responsibility if:

a) He is married to the child's mother at the time of the child's birth; or - s.2(1) CA 1989

b) The child is born after 1 December 2003 and he is registered as the child's father on the birth certificate - s.4(1)(a) CA 1989

Can otherwise obtain parental responsibility if:

1) The father and mother enter into an agreement (A PR agreement) - s.4(1)(b) CA 1989. This should be:

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In the prescribed form

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Signed

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Filed at the Principal Registry of the Family Division of the High Court

2) The father applies to court - s.4(1)(c) CA 1989

3) The father is appointed a guardian of the child

4) The father obtains a residence order from the court

5) The father marries the mother

Others

Can obtain parental responsibility if:

1) They are appointed guardian - s.5(6) CA 1989

2) They adopt the child

3) A person who is not the parent or guardian of the child automatically has PR where there is a residence order

4) A step-parent/civil partner may obtain PR in two ways: a) Entering into a PR agreement with the parent who has PR for the child; or b) Applying to court - s.4A CA 1989

3) When does PR cease?

Mother, married father, unmarried father, step-parent or civil partner that acquires PR

Will have PR until the child is 18 unless an Adoption order is made

A person who acquires PR through a residence order

Will have PR as long as the residence order (usually until child is 16 / 18)

If someone else acquires PR

PR for the original person will not cease, unless the other person is adopting the child - s.46(2)(a) Adoption and Children Act 2002

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Does not cease if adopter is partner of the parent of adopted child

4) Which Section 8 order should be applied for, for each issue identified?

Residence

Residence Order

What is it?

1) It determines with whom the child should live

2) A person granted a residence order is also granted parental responsibility for the child

What types of residence order can be made?

A residence order in favour of one or other of the parents / applicants

A shared residence order

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These are not the norm but if it is in the best interests of the child (in accordance with s.1 CA) then may be granted - D V D (Shared Residence Order)

What restrictions are there when a residence order is in place?

Change of surname - s.13(1)(a) CA 1989

1) No child may be called by a new surname where a residence order is in place, this includes: a) A formal change of name; and b) Any attempt to have a child called by a new surname

2) If a person does want to change the child's name they must: - s.13(1) a) Obtain written consent of every person with PR for the child; and b) If this consent is not forthcoming apply to the court for a Prohibited Steps Order (opposing change of name) or a Specific Issue Order (proposing change of name)

Removal of child from the UK - s.13(1)(b) CA 1989

1) No child can be removed from the UK where there is a residence order

2) If a person does want remove the child, they must a) Obtain written consent of every person with PR for the child; and b) If this consent is not forthcoming apply to the court for a Contact order (with this issue included) or a Prohibited Steps Order (opposing removal) or a Specific Issue Order (proposing removal)

3) However a person with a residence order in their favour may remove the child from the UK for a period of less than one month (for holiday)

Contact

Contact Order

What is it?

1) Provides that the person with whom the child lives must allow the child to visit, stay or have contact with the person named in the order

2) The contact order may include: a) Physical contact, telephone calls, letters and e-mails from the specified person; or b) The amount of time of contact or may provide for 'reasonable contact'

3) It will normally remain in force until the court discharges it or the child reaches 16 Prohibited steps /
Specific issue order should only be made if the desired result cannot be achieved by making a residence or contact order - s.9(5) CA 1989

What are the court's considerations when deciding whether to grant a contact order?

1) Contact with both parents is the right of the child

2) Regarding domestic abuse allegations the court should consider "the past and present conduct of both parties, the effect on the child and the residential parent and the motivation of the parent seeking contact" - Re L, Re V, Re M, Re H (Contact: Domestic Violence)

What conditions can the court impose? - s.11 CA 1989

1) Contact Activity Directions - s.11A CA 1989 such as: a) Attending information sessions; b) Taking part in programmes / classes / counselling / guidance sessions

2) Requiring a CAFCASS officer to monitor compliance with the contact order for a year

3) Make compensation payable by an individual who has caused financial loss to another individual as a result of breaching a contact order

To prohibit a step taken by another PR holder

Prohibited Steps Order

What is it? - s.8(1) CA 1989

1) It deals with specific problems that have arisen between the parties and in regards to PR

2) It prevents a step being taken by a parent in exercising his PR for a child without further consent of the court

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E.g. prevent a party changing the surname of a child / removing a child from the UK

3) Should only be made if the desired result cannot be achieved by making a residence or contact order - s.9(5) CA 1989

To compel another PR to do something

Specific Issue Order

What is it?

1) Gives directions to resolve any dispute that has arisen between parties and when meeting their PR duties (e.g. change of children's name)

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E.g. Instruct a party changing the surname of a child / removing a child from the UK

2) Should only be made if the desired result cannot be achieved by making a residence or contact order - s.9(5) CA 1989

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