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Quick links

- Arrangements for children
- Other types of Court Orders

- Parental responsibility
-
Child maintenance



Arrangements for Children

One of the greatest anxieties faced by parents when they separate is what are going to be the arrangements for the children.  Where are they going to live and who are they going to live with are key concerns.  This, at a time when relations are often fraught, can result in ongoing disputes. 

The key concerns are where the children are going to live and how and when an absent parent may get to see them.  Additionally there may be issues concerning parental responsibility .

There is a presumption that continued parental involvement is in the best interests of the child. The Family Court will presume, unless the contrary is shown, that keeping both parents involved in the life of the child concerned will further the child’s welfare. However, the law is clear that there is no presumption of shared parenting. Rather, the idea is that a child should maintain a meaningful relationship with both parents wherever possible.

Reaching an Agreement 

It is by far the best solution for everyone, especially the children, if both parents can co-operate and reach an agreement on these very important issues.  How much the children are involved in these discussions will depend upon their age and understanding. 

Being able to discuss matters and reach an agreement about arrangements is the best outcome parents can have. The ability to be flexible in order to accommodate changes is often key to the success of any ongoing arrangements.  We often have callers concerned with;

  • How often should contact take place
  • What happens with joint residence arrangements
  • What happens if one parent does not want to discuss matters
  • How does a court decide what happens.

If it is not possible to reach an agreement, parents can apply to the Family Court for a child arrangements order. However, before a parent can go to the Family Court for a child arrangements order, the separating couple must have attended a Mediation Information and Assessment Meeting ('MIAM'). A MIAM is a meeting designed to raise the awareness of the benefits of mediation in relation to disputes about children or finances. Without attending such a meeting, or being exempt, e.g. in cases where there is violence, it will not be possible to proceed to a court hearing on the issue.

During a MIAM, it is the role of the mediator to inform the parties about the mediation process, how it works and the benefits to all parties. Once completed, the mediator will certify that the MIAM has taken place and whether or not the case is suitable for the mediation process to proceed. Where one party is eligible for legal aid the cost of the MIAM will be met for both parities. If neither is eligible the cost is met by each party but in either case it is not necessary for both parties to attend together.

Legal aid may be available for mediation, and legal support with the mediation, where it would not be available for a court hearing.

In all cases concerning children the starting point for the courts in reaching any decision is what may be in the best interests of the welfare of the children taking into account all the facts of the case.

children and divorce

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Other types of Court Orders

A specific issue order: an order in relation to and issue concerned with parental responsibility where the parents cannot agree such as: 

  • An issue with schooling
  • An issue concerning a change of surname
  • An issue of medical treatment

Prohibited steps: an order to prevent one parent taking a particular action related to parental responsibility such as:

  • Stopping medical treatment
  • Stopping a parent removing a child from the country
  • Stopping a child being adversely influenced by someone

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Parental Rights

What are parental rights? Defined in law as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’. These are the basic rights required to raise a child and include:

  • The right to decide on day to day care
  • The right to give consent for medical treatment
  • The right to decide on a childs religion.
  • The right to decide where a child lives
  • The right to decide on a childs education,

Married parents enjoy equal parental rights as do fathers of children born to unmarried mothers, provided their name appears on the birth certificate.  For children born before 1st December 2003, and/or whose father is not on the birth certificate, parental rights are not automatic.  In those cases is the mother who automatically has those rights granted by law.

If you are an unmarried father who does not have automatic parental rights there are two ways these can be acquired:

  • By agreement with the child's mother or
  • By application to the court.

 

Parental Responsibility Agreement 

You can enter into a parental responsibility agreement using the form here.

As parents you will need to complete the form making sure that your signatures are witnessed.  Then the completed forms must be lodged with the family court.  The process is completed once the High Court has received them.  A stamped copy of the form will be returned to you.

Parental responsibility Order

If the mother of your child does not agree to give you parental responsibility it may be necessary to apply to the court for an order to be made.  To do this you will need to complete the necessary form C1 see here. And pay the necessary fee.  This will need to be done if you wish to make any other application relating to children such as contact or residence.

If you are living in Scotland a different process is required for which more details can be found here.

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Child Maintenance

Child maintenance: is the financial payment by one parent to another for the support and maintenance of a child where the parents do not live together. It is usually paid to the parent who has day to day care of the child pay the parent who is absent.

Maintenance for children is not generally dealt with by the courts (but see below) leaving most couples to deal with the matter in one of two ways:

Family agreements: Family-based arrangements are child maintenance arrangements which parents have agreed between themselves. You might also have heard them referred to as family arrangements, voluntary arrangements or private agreements.

Statutory child maintenance arrangements: arrangements put in place by the Government's statutory child maintenance service.

The Child Maintenance Service opened in 2012 and now manages all new applications for a statutory arrangement. It uses slightly different rules to the Child Support Agency, which is closed to new applications but still manages many statutory arrangements set up before December 2013.

The child named in the application must be;

  • Under 16 or
  • Between 16 and their 20th birthday and undertaking full time non advanced education i.e. sixth form/college rather than university or,
  • Between 16 and their 20th birthday and registered with a government training course and child benefit is also being paid.

There are proposals to introduce fees for the using the statutory service and for any enforcement actions required to make sure that payments are made.  All such fees will be payable by the paying parent.  To avoid this parents are encouraged to make a family agreement.

Find out more about the statutory child maintenance service and find a child maintenance assessment tool.

Consent orders (a type of court order in England and Wales): Parents living apart in England and Wales can also arrange child maintenance by going through the courts to put a consent order in place. 

Minute of agreement (in Scotland): In Scotland, you can make a contract called a minute of agreement. This can be registered to make it legally binding, without needing to go to court.

Get more information about using the courts.

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