Family and Litigation

Children, residence and contact

An Overview of Children Orders in England and Wales

Applications for Residence or Contact Order

A Residence Order states who the child is to live with.

A Contact Order states how often and the terms of contact with a parent who does not live with that child.

An application is filed with the High Court, County Court or Family Proceedings Court. The Applicant must serve a copy of the application on each Respondent, notice of application and blank acknowledgement at least 14 days prior to the hearing. A First Directions hearing (normally conciliation application). Conciliation Appointment is an opportunity to reach an agreement.

If agreement cannot be reached at the Conciliation Appointment usually both parties have to file written statements regarding the children and a CAFCASS Officer (formerly a Court Welfare Officer) will be ordered to file a report setting out in their opinion where the children's interest are best served. In most parts of the Country this process takes 12 weeks or more. The Court can make a preliminary decision if the matter is urgent and the child is at some risk. If agreement still cannot be reached after the report, the matter is then heard by the Judge.

The Judge/Court/Cafcass Officer uses a checklist of things to consider when dealing with applications. The checklist is:

Other Orders include Specific Issue Orders (e.g. direction for determining a specific question related to parental responsibility) and Prohibited Steps Orders (which have the effect of restraining the actions of person in relation to a child).

Although it is possible to conduct your own divorce when there are complications in respect of finances or Orders related to children, it is recommended that legal advice be taken.

Guide to Children in Family Breakdown

The law relating to children in situations of family breakdown has been radically altered by The Children Act 1989 which came into force in October 1991 and The Child Support Act 1991 which came into force in April 1993.

We have prepared the following guide to summarise the current position. We would emphasise that the information is given in general terms and there may be special factors relating to your case upon which you will need to seek further advice.

What is Parental Responsibility?
The Children Act 1989 introduced a new concept called Parental Responsibility. This term covers all the rights and duties which by law a parent has in relation to his/her child or children. Since October 1991 the Courts no longer have power to make "custody" or "access" Orders.
Who has Parental Responsibility?
In the case of married parents, both parents have Parental Responsibility.
In the case of unmarried parents, only the mother initially has Parental Responsibility but the father can acquire it either by entering into a Parental Responsibility Agreement with the mother, being named on the birth certificate (since December 2003) or applying to the Court.
Parental Responsibility is not "lost" by either parent on divorce and where it is shared, either parent can act independently from the other. If the parents cannot agree on what is in the best interests of the child, one or other can apply to the Court for:
A Residence Order: An Order settling the arrangements as to the person with whom the child is to live.
A Contact Order: An Order requiring the person with whom a child lives or is to live to allow the child to visit or stay with the person named in the order and for that person and the child to otherwise have contact with each other. (e.g. by writing to each other, telephoning etc.).
A Prohibited Steps Order: An Order preventing a parent from exercising his/her Parental Responsibility in a particular way (e.g. an Order preventing the change of surname, the change of school or preventing abduction).
A Specific Issue Order: An Order giving directions in relation to a specific question concerning the child. (e.g. to settle a particular dispute with regard to schooling, medical treatment, permission to live abroad etc).
What factors does a Court take into account in making a Court order?
In all proceedings involving children the paramount consideration is the welfare of the child.
In determining what is in the best interests of a child, the Court will consider the following matters:
  • The wishes and feelings of the child taking into account the child's age and understanding.
  • The child's physical, emotional and educational needs.
  • The likely effect on the child of any change in circumstances.
  • The child's age, sex, background and relevant characteristics.
  • Any harm the child has suffered or is at risk of suffering.
  • The parent's ability to meet the child's needs.
  • The Court's range of powers.
NB: The Court will only make a Court Order if it considers that to do so would be in the best interests of the child. Preferably the parents should try to reach an agreement so that it is not necessary to make an Order.
What happens if my ex-spouse and I disagree about the arrangements for the children?
Normally the Court will encourage parents to discuss problems and to try and reach agreement. Sometimes it may be of assistance for the parents to discuss matters in dispute with an independent third party who is trained to advise and assist. This process is known as "conciliation" and can be arranged either voluntarily by the parties or through the Court. If conciliation is arranged through the Court very often the parties' legal representatives will also attend and if an agreement is reached any legal proceedings can be halted. Discussions which take place in conciliation are confidential and cannot be used in Court proceedings unless allegations of child abuse are raised.
If it is impossible for the parties to reach agreement through conciliation the Court may be invited to make a Court Order after hearing both parties' points of view. If this becomes necessary sometimes the Court ill order the preparation of a "Welfare Report". The Court Welfare Officer will then meet with the parties, the children and any other person involved, for example school teachers, social workers and grandparents. A confidential report will then be prepared for the Court, a copy of which should be supplied to both parties' solicitors.
Can I take my children abroad without the consent of my spouse?
Previously, Custody Orders made in divorce proceedings contained a general restriction preventing either parent from removing a child from England and Wales without the consent of the other person or an order of the Court.
Under the present law there will normally be no Court Order in existence and on the face of it, there is no restriction on either parent taking the children abroad.
But:
  • The Child Abduction Act 1984 makes it a criminal offence to remove a child under the age of 16 with whom you are connected from the UK without the consent of each parent.
  • A parent who suspects that the other parent is about to remove a child from the UK can apply to the Court for the additional protection of a Prohibited Steps Order.
If a Residence Order has been made no person can remove a child from the UK without either the written consent of the others with Parental Responsibility or the leave of the Court.
But:
  • If a Residence Order exists there is a general power for a person in whose favour the order is made to take the child out of the UK for less than one month without the consent of the other parent or leave of the Court.
Can we change the children's surname?
Previously a Custody Order contained a restriction against either party changing the surname without either the consent of the other party or an order of the Court. Under the current law in most cases no such order will be in existence and there will be no general restriction against changing the child's surname.
But:
  • An aggrieved parent can apply to the Court for a Prohibited Steps Order.
  • If a Residence Order has been granted no person can cause a child to be known by another surname without either the written consent of everyone with parental responsibility or leave of the Court.
Can I apply for a Court Order to see my grandchildren?
Yes, a grandparent or other interested party can apply to the Court for a Contact Order, or even a Residence Order but would normally require leave of the Court to make such an application unless the child has lived with them for more than 3 years out of the previous 5.
Can I stop my ex-spouse from having the children if anything happens to me?
A parent can appoint a guardian effective in the event of his/her death.
But The appointment will not take effect until there is no surviving parent with Parental Responsibility.
Unless There was a Residence Order in favour of the appointing parent in force at the time of his/her death then the guardian and surviving parent would share Parental Responsibility and either can apply to the Court for an Order in the event of a dispute.
NB. In the past guardians had to be appointed by Deed or Will. They can now be appointed in writing signed and dated by the appointer.
Can I continue to be involved in my child's education?
Even after divorce both parents retain Parental Responsibility and both parents have the right to be involved in their child's education by attending parent teacher meetings and requiring copies of school reports etc.
What should I do if I require further advice?
If you have any further queries you may like to consult us further at the following address.

General Principles

The Children Act 1989 has a number of general principles which are listed below.

The Welfare Principle
When a Court is asked to decide an issue about the upbringing of a child, the child's welfare shall be the Court's paramount consideration. In other words, the most important factor is what is best for the child.
The Law sets out a number of things for the Court to consider. This list is sometimes called the Welfare Checklist and it is worth looking at all seven factors as the law sets them out.
A Court shall have regard in particular to:
  1. the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
  2. His physical, emotional and educational needs;
  3. The likely effect on him of any change in his circumstances;
  4. His age, sex, background and any characteristics of his which the Court considers relevant;
  5. Any harm which he has suffered or is at risk of suffering;
  6. How capable each of his parents, and any other person in relation to whom the Court considers the question to be relevant, is of meeting his needs;
  7. The range of powers available to the Court under t his Act (Children's Act 1989) in the proceedings in question.
The No Delay Principle
When an application is made to the Court for an Order involving a child delay should be avoided at all times. The Courts and solicitors have a duty to avoid delay in children's cases. The Courts are responsible for actively making sure that once an application is made it is no allowed drift.
The Presumption of No Order
If both parties agree the arrangements for a child the Court will not become involved and no Court Order will be made. An Order will only be made if the Court believes that an Order would be better fro the child than making no Order at all.

Orders Relating to Children

There are many types of Order which the Children Act 1989 make possible. The Orders which regulate private arrangements for children:

The above are set out in Section 8 of the Children Act 1989, and are sometimes referred to as the "section 8 orders".

We recognise that the practical and emotional aspects of separation can be made worse by the complexities of the Law. Difficulties may arise because people have unrealistic expectations of what can and cannot be achieved.

No solicitor can solve all the problems which divorce or separation bring. Only the individuals involved can hope to do that. Adopting a constructive and conciliatory approach, can help to reduce much of the distress experienced as a marriage ends.

Family law is unlike most other types of legal practice because it is concerned with emotional as well as practical issues. The lives of the whole family are affected by the outcome, so the way in which the settlement is reached can be almost as important as the settlement itself.

Parental Responsibility

Parental Responsibility was a new concept introduced by the Children Act 1989 before this parents had rights over children. Now the emphasis is on parents having responsibility for them.

The Law says that it means "all the rights, duties, powers, responsibilities and authority which by Law a parent has in relation to the child and his property".

A person with Parental Responsibility cannot surrender or transfer it unless the child is adopted.

View the application process for residency/contact order

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