When relationships break down, issues often arise over which parent a child should live with and how often the other parent should see the child. The narrative below relates to children of married parents, non-married parents and parents who are civil partners and same sex parents.
These disagreements used to be described as disputes about “custody” and “access”, with one of the parents being given day to day “care and control” of the child or children. However, these terms were abolished with the introduction of the Children Act 1989 and replaced with the terms parental responsibility, residence and contact.
From 22 April 2014, Contact and Residence Orders are no longer available. Under the new scheme, Child Arrangements Orders are now available and replace Contact Orders and Residence Orders. A Child Arrangements Order therefore regulates arrangements relating to with whom and when a child is to live, spend time or otherwise have contact with.
Both parents automatically have parental responsibility for a child if they were married when the child was born. This means that each of them is legally recognised as having all the rights and duties that parents normally have in relation to a child and that generally they both have to be consulted about major decisions in relation to the child’s upbringing e.g. in relation to education, medical treatment, any change of the child’s name and removal of the child out of the jurisdiction.
If the child's parents were not married, the mother automatically has parental responsibility. However, the father has parental responsibility as of right if he is named on the birth certificate of the child (after 1st December 2003). Otherwise the parents can sign a parental responsibility agreement giving the father parental responsibility or he can apply to Court for an order giving it to him.
A step-parent (who is married to one of the parents or is the civil partner of one of the parents) can acquire parental responsibility with the agreement of all those holding parental responsibility or by a court order.
Child Arrangements Orders
If a child's parents cannot agree on who a child should live with and how much time he or she should spend with the other parent, either parent may apply to the Court for a Child Arrangements Order. Before making a relevant family application a person must attend a Mediation Information Assessment Meeting (MIAM) except in certain circumstances, for example where there is evidence of domestic violence, child protection concerns or an emergency.
Previously, a Residence Order would have determined who a child should live with and a Contact Order would have specified how much time the non-resident parent should spend with the child. Since 22 April 2014 these orders have been replaced with Child Arrangements Orders.
A Child Arrangements Order therefore regulates arrangements relating to with whom and when a child is to live, spend time or otherwise have contact with.
A father who does not have Parental Responsibility will automatically be granted Parental Responsibility if he is granted a Child Arrangements Order specifying that the child is to live with him. Furthermore, where a Child Arrangements Order sets out with whom a child should live, that person will be permitted to take him or her outside the country for up to a month without the other parent's consent.
Alternatively, if a father who does not have Parental Responsibility obtains a Child Arrangements Order stating that the child is to spend time or otherwise have contact with him (rather than to live with him), the Court must, when granting the order, decide whether it is appropriate to give the father Parental Responsibility. If the Court decides that it is appropriate, it must grant a Parental Responsibility Order in his favour.
A Court may also make “Activity Directions” when considering who a child should live with, or spend or otherwise have contact with in order to help establish, maintain or improve the involvement of a person in a child's life. This may include a requirement to attend parenting classes or counselling sessions.
If there are allegations of abuse or violence, either by one parent towards the other or by one of the parents towards the child, the Court may be asked to decide whether contact should be supervised.
Although there is a presumption, where a court is dealing with an application for a Child Arrangements Order, that each parent should be involved in a child's life, this presumption does not apply where that involvement would not further the child's welfare (this may include, for example, where there has been a history of serious abuse inflicted on a child by a parent). Note that there is no presumption that parenting of the child should be equally split between the parents or that the time the child spends with each parent should be divided between them in predetermined proportions – each case will turn on its facts.
The Court may ask an officer from the Children and Family Court Advisory Support Service (CAFCASS) to meet with the child and both parents and to assess the situation and provide a report.
Other experts may be asked by the Court to provide reports, depending on the complexity of the issues involved and the nature of any allegations made. Again, the Court's paramount consideration is what is in the child's best interests.
In addition to Child Arrangements Orders, parents may apply under the Children Act 1989 for the Court to decide any specific issue about the child (a Specific Issue Order) e.g. whether the child should undergo specific medical treatment or which school they should attend, or the parent may apply for an order preventing the other parent from taking a particular course of action in relation to the child (a Prohibited Steps Order) eg. forbidding the other parent from removing the child from his or her home or school or from the jurisdiction without consent.
Sometimes it may be appropriate for the child, either by themselves or through a guardian or another competent adult, to take proceedings themselves for orders under the Children Act 1989.