‘Divorce is a journey that the children involved do not ask to take. They are forced along for a ride where the results are dictated by the road their parents decide to travel‘ – Diane Greene, American investor and a Google board member.
In cases where separated parents are unable to agree ‘shared care’, the court does now recognise the importance of both parents and the roles they should each be encouraged to maintain in their children’s lives.
There’s also lots of practical help and advice. Over at Merrick Life you can read about the Parenting Apart Programme designed by Claire Field Consultancy to support parents, and the emotional wellbeing of children going through conflict, separation or divorce. Kate Thorpe – a former solicitor who now practises as a hypno-psychotherapist specialising in stress and anxiety management – contributed to Merrick Life’s Christmas Survival Guide with practical suggestions to help you navigate that first Christmas after a break-up. These are just two examples of information available to provide support.
Despite best intentions emotions can sometimes make effective communication difficult. The principle of shared care may be agreed but it can be hard to come to terms or manage the consequences as real-life events impact on arrangements. In these circumstances mediation may be a useful forum for dispute resolution – a space in which grievances can be aired to facilitate progress. If your case is suitable for alternative dispute resolution and it’s your preferred option we will make a referral to one of our trusted experts.
It is better for parents to come to their own agreement about arrangements for their children if at all possible but we recognise there are some situations in which legal proceedings offer the only credible solution.
‘Parental responsibility’ is the legal duty to take all reasonable steps to supervise and care for any minor child. This is vested in the mother from birth. A father has it if he is married to the mother at conception and he acquires it if he marries her at any time thereafter. An unmarried father has parental responsibility if (with effect from 4 May 2006) he is named on the child’s birth certificate. It can subsequently be granted by consent in the form of a parental responsibility agreement. The court can also vest parental responsibility by way of an order.
Assuming you both have parental responsibility you should consult each other in relation to significant issues such as:
Where and with whom the child(ren) live
Education, to include which school they will attend
The appointment of a guardian in the event of your death
Separation and any subsequent divorce do not change this.
If a problem arises that you cannot resolve, the court has power to make decisions on your behalf. This process is enabled by either party issuing a court application under the Children Act 1989.
The child’s welfare is the court’s paramount concern and as such it will make the decision it determines to be in his/her best interests. The interests of the adults save and so far as they impact on the child’s welfare, are not the court’s concern.
The court has jurisdiction to deal with all issues which affect a child’s welfare and can, once a section 8 application is issued, make any order it sees fit. This means the court is not limited to simply determining the application that has been placed before it but can make any order it deems appropriate. This can include:
a Child Arrangement Order which regulates the arrangements relating to with whom a child is to live and whom a child is to see, spend time with or otherwise have contact.
a Prohibited Steps Order, which, if granted, will prevent the other parent from taking a particular step in relation to their child, e.g. preventing a child from being taken out of the country or subjected to a particular form of medical treatment.
a Specific Issue Order to resolve a point of dispute between parents over a particular issue, e.g. which school a child should attend and leave to remove for a holiday. If a Child Arrangement Order says the child must live with you, you can take that child abroad for 28 days without getting permission unless a separate court order prevents you from doing so. In any other circumstances you must get the permission of everyone with parental responsibility or from a court before taking a child out of England & Wales.
Once a section 8 application has been issued it cannot be withdrawn, determined or settled other than with the agreement of the court. Notwithstanding any agreement by the parties, if the court remains concerned there are issues to be addressed which touch and concern the welfare of the child/children in question it will refuse any request to discontinue the proceedings.
Change of name
The consent of everyone with parental responsibility is also required for the change of a child’s name. Where consent cannot be obtained a court order is required.
Leave to relocate
The world has become significantly smaller – globalisation combined with ease of travel has made cross-border couples more prevalent than ever. Faced with a former spouse who wants to relocate your children elsewhere in the UK or abroad what can you do? The law is clear in this respect – a child cannot be relocated without the permission of the other parent or person with parental responsibility. Without the required permission such a removal is child abduction. If permission is refused it invariably falls to the court to determine the child’s fate.
Here at Merrick we have extensive experience in children work both in the UK and internationally. We understand that at such a difficult time, doing the best for your child(ren) will be a primary concern. We take the time to listen and understand the details of your situation to ensure you receive the best advice.
AMANDA WAS VERY PERSONABLE, VERY FRIENDLY, BUT SUPER PROFESSIONAL.
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