If you’re having a legal problem with regard to children, or you want to know what your rights and responsibilities as parents or grandparents are, our team is here to help. Our Divorce and Family Law team is the largest in Salisbury, Andover, Amesbury and Fordingbridge – and family law is all they do.
We provide specialist legal advice to clients local to our four offices, throughout Wiltshire, Hampshire and Dorset and further afield. Our Children Solicitors always provide FREE initial phone advice and a FREE first half hour appointment on all family law issues, including child custody arrangements and maintenance – and we offer a specialist drop-in family law advice surgery every Wednesday at Amesbury office – click here for details of our free legal surgeries.
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What is Parental Responsibility?
Parental Responsibility means broadly the rights you would expect a parent to have with regard to a child – including the right to decide where a child lives, on medical treatment and on any change to a child’s name. A mother automatically has Parental Responsibility. A father, however, only has Parental Responsibility in certain circumstances.
Unmarried fathers – what rights do you have?
Do you realise that many unmarried fathers simply have no legal rights in relation to their own children? Well, it’s true.
Parental Responsibility is, broadly speaking, all the rights and responsibilities you would expect a parent to have in respect of their child including the ability to name the child and to decide where that child lives and goes to school, so without it you may find you have very little legal say in your child’s upbringing.
Those fathers who have married their child’s mother share full Parental Responsibility with the mum – and both parents keep parental responsibility even if they subsequently get divorced. The same applies if both parents have adopted a child, or if same-sex partners were civil partners at the time of donor insemination or fertility treatment.
However an unmarried dad does not automatically have Parental Responsibility unless:
• His name is registered as father on the child’s birth certificate after December 1, 2003
• He has entered into a Parental Responsibility Agreement with the mother.
• He has a court order for Parental Responsibility or a Residence Order.
With nearly one in four children growing up in a lone-parent family, of which over 90% are headed by the mother, hundreds of thousands of fathers may simply not realise that they have no legal rights whatsoever with regard to their own children.
Who can’t appoint a guardian for their children
In England and Wales, unmarried dads without parental responsibility are not permitted to appoint named guardians for their children, neither will they automatically be appointed guardian in the event that the children’s mother dies.
If you find yourself in that position and want to safeguard your rights, our family lawyers recommend that you try to enter into agreement in writing to share parental responsibility with the children’s mother. If she’s not willing to cooperate then you may feel that you have no option but to apply to the family court for a parental responsibility order. The alternatives for unmarried dads would be to rely on mum to appoint you as a child’s guardian in her own will or to marry the child’s mother – and therefore acquire parental responsibility yourself automatically.
Without these safeguards in place, your position as guardian should mum die is uncertain –you will probably need to apply to court to regulate your position – and in the worst possible scenario face an application for guardianship by another family member – perhaps the child’s mother’s new husband or partner, or other maternal relatives.
There are a various Orders the Court can make about children when dealing with divorce, but the principal orders are:
- Child Arrangements Order – will determine with whom a child is to live with, spend time with or otherwise have contact with, and when these arrangements will take place. (NB Child Arrangements Orders have replace the old ‘residence orders’ and ‘contact orders’. However anyone with these earlier orders need not re-apply as they remain valid).
- Specific Issue Order –allowing the Court to determine an important matter e.g. on a child’s medical treatment, schooling or religious upbringing.
- Prohibitive Steps Order – allowing the Court to stop a parent doing something that they might otherwise be entitled to, e.g. stop a parent taking a child out of the country without permission of the Court or coming into contact with someone that the Court feels is unsuitable.
What does the court take into account?
In considering these Orders the Children Act ensures that the welfare of the child is the paramount consideration i.e. not what is best for the parent but what is best for the child. The Children Act sets out a list of factors for the Court to consider including:
- The child’s wishes and feelings.
- The child’s physical, emotional and educational needs.
- The likely effect on the child of a change in their circumstances.
- The child’s age, sex and background.
- Any harm which the child has suffered or is at risk of suffering.
- How capable are the parents and any other relevant person of meeting the child’s needs.
The Court has an obligation to make no Order about a child unless they think that making an Order is better for the child than making no Order.
The effect of legal proceedings upon children
As in all family law matters our Family Solicitors strongly advise parents to try to reach agreement for the sake of the child. It can be hugely important for children to know that their parents, though they may have split up, have come to an agreement between them on issues of childcare.
When it comes to children, court should be the last resort
We will work with as far as possible in trying to reach a satisfactory agreement without the need for a Court application. However if a Court application proves necessary we will represent you with sensitivity. but it should always be considered as a last resort – court proceedings are generally drawn out expensive and hugely stressful for all involved – especially if the children are old enough to know what’s going on.
Our experienced children Solicitors deal with a wide variety of children’s cases from grandparent contact, international child abduction to removal of a child from the jurisdiction. You may also want to consider family mediation – two of our family law team are jointly qualified and highly experienced family lawyers/mediators, who can help you with resolving issues about contact and custody, as well as financial settlements following relationship breakdown.
Click here to find out more about our family mediation service.
I don’t have a Child Arrangements Order – can I take my children aboard on holiday?
Yes, but only if you obtain the permission of their other parent or the Court before doing so.
The Child Arrangements Order was made in my favour – do I still need permission?
Even if you have a Child Arrangements Order stating the children should live with you, yes, you do need permission if you are planning on being on holiday for more than a month, you will still need permission from their other parent. However, you do not need to do this if you are planning to be away for less than a month – this is broadly to cover holidays and temporary trips abroad.
In any case, it is responsible parenting to inform the other parent of the holiday and provide full details about where you will be staying, dates of departure and return, any flight details and contact telephone numbers in case of an emergency.
Can I take my child abroad permanently without consent?
A parent who moves their child abroad without first seeking permission from the other parent. It’s always sensible to make sure that you get that agreement clearly set out in writing. Failing to get the others consent, means that you will be seen to have abducted the child in the eyes of the law.
Unsurprisingly, parents often refuse to give ex-partners permission to move their child overseas and in such cases permission to relocate the child must be sought from the court.
No one is favoured; the most important thing is that the children’s best interests are looked after. However, English courts, unlike the courts in many other countries around the world tend to favour applicants wishing to relocate their children, provided that any move is in the interests of the child. This can of course be crushing for the other parent for whom distance and the cost of travel means they may not see their child for months at a time.
However, if the applicant wants to move back to their home nation, go and live with a new partner or move for employment purposes it can be very difficult being stuck somewhere they don’t want to be.
Taking a child abroad – “leave to remove” – what the court need to know
If you want to move overseas with your child to live in or for a lengthy stay in another country, you will normally need to apply to the family court for what is known as “leave to remove” your child or children.
Each case is completely different. The Court will make decisions based on a number of factors. Education and accommodation in the new country are just two of the issues which are likely to be taken into account. However, if you want to be granted leave to remove your child, any court in the UK will need to be satisfied with certain key assurances from you. In particular;
- That the move is based on improving the quality of life and not on malicious motives to make it difficult for the other parent to see their child
- That the move makes practical sense and has been well planned out
Without these assurances the court is very unlikely to approve the request.
Even with these assurances, the other parent’s positions will be taken into consideration. The damage it will cause to their relationship with the child and the impact it will have on their lives will be thought of.
However, UK courts also consider the upset that refusing the application would have on the applicant and may believe that the benefits of moving the child abroad outweigh the damage done to the other parent.
If you have gone through a divorce or your relationship has broken down, and you now want to take your child abroad, our experienced family solicitors can help.
We can advise you wherever you live in England and Wales – or if you’ve already moved abroad – taking instructions in person, by email, phone or video call.
What happens if their other parent takes them abroad without my permission?
If the other parent has or is planning to take your child(ren) abroad without permission [unless, of course, you have a Child Arrangements Order and this is only for one month or less] this amounts to child abduction and you should seek immediate advice from on of our specialist family solicitors to find out what steps you need to take next. If there is a risk that your ex partner may take your child out of the jurisdiction without your permission you should also seek advice so that preventative measures can be put into place.
Moved abroad? Our Children Solicitors can help you
We can advise you wherever you live in England and Wales – or if you’ve already moved abroad – taking instructions in person, by email, phone or in a video call.
Providing for your children – Setting up a trust
One of the most useful feature of a will is that it can be used to set up trusts for your children. Should you die, your estate, or part of it, can be paid into the trust, rather than directly to your children. You can appoint trustees who will administer the trust and distribute money from it according to your directions.
Click here to find out more about setting up a trust