Although most proceedings seem to have court involvement, when it comes to children issues we encourage parents to try and agree the arrangements between them before the divorce is finalised. It is only when failing this that the court has power to intervene in the best interests of the children – this is to include where there should reside, finances and care proceedings.
When does the court get involved?
The court only ever has the power to get involved when the adults that remain to be parents to the children are unable to agree on what is best, the idea behind this is that although both parents separate they still remain parents to the children and therefore should be able to make suitable arrangements for them.
When deciding what is best for the children the court has to consider the welfare of that child, they do this by having to refer to the ‘welfare check list’ which is set out in the Children Act 1989:
1. The wishes and feelings of the child concerned (in light of his age and understanding)
2. The physical, emotional and educational needs of that child
3. The likely change in any circumstances
4. The child’s age, sex and any other characteristics the court considers relevant to the case
5. Any harm that could or has been already suffered
6. How capable each parent is to providing their needs
Our services at court:
We are able to deal with the following issues:
1. Parental Responsibility – This means all the rights, duties, powers, responsibility and authority that a parent of a child has in relation to the child and his property. The mother automatically has parental responsibility but if the parents were to marry then this would become joint. New law states that a child born after 1 December 2003 will also be responsible to their father who is on their child’s birth certificate. If parental responsibility is not given it can be gained by obtaining an order or applying at court.
2. Contact order – this determines that the child who does not reside with this parent to have contact with them, this could include indirect contact by letters or telephone calls or visitations or staying.
3. Residence Order – this determines which person a child shall live with and can be shared in some circumstances
4. Prohibited steps order – this prevents someone from doing something which they could normally do under their parental responsibility, so anything from contact with that child or removing the child from the jurisdiction.
5. Guardianship – if there is no parent with parental responsibility for that child the court can appoint a guardian for that child, it can be made under a will also but this will only take effect when the death of the last person with responsibility has concluded.
6. Adoption – this is to include where a child is to be adopted by a step-parent or a family member on a private basis.
7. Emergency issues – it is now possible to issue applications to the court without notifying any other parties involved in cases, for example cases which include child abduction. We are also trained here to take emergency steps to prevent physical harm to any family member, and the court has powers to make non-molestation orders to protect against domestic violence.
Quite often the Children and Family Court Advisory and Support Service (CAFCASS) help to assist the court by giving a fuller picture of the child’s circumstance, to assist parents in reaching an agreement about their children or to make suggestions to the best possible methods to reach what is best for the children.
In most cases the Judge does not see the child with the family and therefore will not be able to have a proper grasp on the family life situation, this is where the CAFCASS officer comes into play and helps give ideas about the situation. They will often interview all parties, including the child, involved and help ascertain the wishes and best interests for the children. Quite often this means contact with each child’s school also. They are an independently court run body and therefore looked well upon in each case they are involved in.
Child Maintenance and CSA
The primary carer of the child is usually the receiver of support from the other parent known as Child Maintenance. This can be agreed between parties or can be applied to the Child Support Agency for a maintenance assessment. This assessment will be binding and can be enforced. These calculations take into account the amount of time the child spends with each parent and also the non-resident parent’s income.