Gullands’ guide to children

The approaching summer holidays can sometimes cause friction between separated and divorced parents and there are a number of principles which should be considered.

The welfare principle: Under the Children Act, the welfare of the children is the Court’s paramount consideration and their guidance includes:

• The ascertainable wishes and feelings of the child (considered in the light of their age and understanding).
• The child’s physical, emotional and education needs.
• The likely effect on the child of any change in circumstances.
• The child’s age, sex, background and any characteristics of the chid which the court considers relevant.
• Any harm that the child has suffered or is at risk of suffering.
• How capable each of the child’s parents and any other person in relation to whom the court considers the question relevant is of meeting the child’s needs.

Parental responsibility: This is best defined as ‘the rights, duties, responsibilities and decisions you make every day in respect of your children, but take for granted’. A mother automatically has parental responsibility for her children and a father will automatically have parental responsibility if he is married to the mother at the time of the child’s birth, subsequently marries the mother, enters into a Parental Responsibility Agreement with the mother or obtains a Parental Responsibility Order. One parent can exercise parental responsibility without the consent of the other parent. The guiding principle for the exercise of parental responsibility is the welfare of the children.

Child Arrangement Orders: These are Orders that the Court can make relating to children in private law proceedings. They concern:

• With whom the child shall live.
• With whom the child shall spend time – to confirm the amount of time the child will see the non-resident parent and potentially other family members
• Specific issue order – invites the Court to adjudicate on a specific issue.
• Prohibited Steps Order – prevents somebody from doing something in relation to a child.

Removal of a Child from this country:

If there is no child arrangements order, each party must have the permission of everyone with parental responsibility before removing the child from the country or they will need a court order.   This is becoming more of an issue now as international attempts to stop child trafficking mean more questions can be asked at passport control about whether consent has been obtained from everyone with parental responsibility.  

Those with parental responsibility and a child arrangements order confirming the child lives with them, can remove the child for up to 28 days without consent. Removing the child from the jurisdiction without the necessary permission is a criminal offence.

A checklist when considering an application for removal of a child from the jurisdiction is set out by the court as follows:

• The application must be genuine and not motivated by a desire to exclude the non-resident parent from the child’s life.
• The application must be based on practical proposals which are well researched and investigated.
• The court must consider the detriment to the non-resident parent and their relationship with the child.
• The court must consider the impact on the resident parent.
• The child’s welfare will always be paramount.

There are ways of resolving your disputes without going to court.  Julie is a Collaborative Lawyer which means she can work with your former partner and their solicitor to resolve disputes by working together for the benefit of the whole family. 

Julie Hobson is a Partner at Gullands Solicitors and can be reached at j.hobson@gullands.com or call T: 01622 689700.