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CHILDREN - A SUMMARY OF THE LEGAL POSITION
Please see the sheet concerning the procedure on divorce for specific child related aspects within those proceedings.
Generally speaking though child related matters are dealt with almost entirely separately. If proceedings are necessary these would almost invariably be commenced under the Children Act 1989 and relate to children of cohabiting couples, and children born outside a fixed relationship as well as children of divorcing parents.
There has been a great deal in the Press recently about the handling of child-related cases in the Family Courts. It is generally accepted first that the Court is usually an inappropriate forum to resolve disputes relating to children, particularly contact issues (see below). Secondly the proceedings are inordinately slow. Thirdly they can be very expensive. Finally the result is often unsatisfactory and enforcement for breach of an order is both difficult and expensive.
If at all possible disputes relating to children should be resolved outside the Court. Mediation through one of the mediation services is often far more successful than the issuing of court proceedings. Mediation not only requires the parents to reach agreement rather than have a solution imposed on them which neither is happy with; it also requires the parents to address the issues which are giving rise to the disagreement in the first place.
We popularly still refer to issues of custody and access. However since the provisions of the Children Act 1989 were implemented in 1991 the terms are now residence and contact.
Parental Responsibility
More importantly, the theoretical and philosophical basis was altered significantly by the Act. Instead of one parent (usually but not necessarily the mother) retaining all parental rights and the absent parent only keeping limited rights both married parents have parental responsibility which is retained by both of them after divorce. Parental responsibility is a concept which is as nebulous as it is important. It is the bundle of rights and responsibilities of a responsible and caring parent. The responsibility is to act in the best interests of one's child. The rights consist amongst other things of having a full relationship with the child, and of being consulted and having an equal voice in such matters as education, religion, medical treatment and the like.
The demarcation between the rights of an absent parent with parental responsibility and the de facto rights of the parent with care to decide on matters relating to the child's day to day routine is a grey one and can often lead to disputes.
The position of fathers of children born outside marriage is more complicated. Parental responsibility is now granted to fathers whose names are on the birth certificate but this only a recent development and only relates to children born very recently. In most cases fathers of children born outside marriage do not automatically acquire parental responsibility. All parents rights are deemed to vest in the mother. However, where a couple have had a secure cohabiting relationship the father will almost certainly acquire parental responsibility if he asks the Court to grant it to him. Where a man has fathered a child outside of a secure and stable relationship however he must satisfy the Court that he is sufficiently committed to his child to the granted parental responsibility.
Apart from those children of married couples and those born recently where the father is named on the birth certificate, fathers need to acquire parental responsibility. This can be acquired either by a parental responsibility agreement reached between the parents themselves and registered with the Family Division in London; or ordered by the Court. With an increasing number of cohabiting couples in stable relationships it is very often the case that fathers will look after children for years while being unaware that they do not have parental responsibility and that the mother theoretically holds all the parental rights. This is unsatisfactory. Equally unsatisfactory is the fact that stepparents cannot acquire parental responsibility unless they also have a residence order (and they lose it again if they cease to have residence).
In theory the absence of parental responsibility means that that parent (almost invariably the father) does not have the right to school reports, or to be consulted about a child's education or religious upbringing.
Public and private law
There are two types of child-related proceedings, public law proceedings and private law proceedings. The former will almost certainly not concern you and relates to an intervention by public bodies (usually Social Services) stating that parents are not carrying out their role satisfactorily. This will often result in what are called care proceedings.
Private law proceedings are proceedings between individuals. Usually these will be mother and father but not necessarily. It could involve a grandparent or stepparent.
Residence
Residence proceedings are almost always very highly emotionally charged.
They should only be commenced as a last resort. The threat by the absent parent of commencing residence proceedings is a very powerful weapon but one which can cause untold emotional damage.
The Court has certain basic premises. First, the interests of the child/children is paramount. Secondly, other things being equal the status quo is to be preferred. It is a big step for children to be disrupted, particularly if this involves a change of school and loss of their friends. Thirdly, the Court does not like to see siblings split up. Finally, the Court will balance the child's immediate needs against long term needs. An example would be where an otherwise good parent is what is called 'implacably hostile' to contact. In those circumstances the Court might give residence to the absent parent, if the parent with day to day care was embarked on a course of parental alienation ie trying by whatever means to exclude the other parent from a full relationship with the children.
These cases tend to be hard fought, very expensive and very emotionally damaging for both the parents and the children. One should not embark on such a course unless there is a very good chance of success.
Contact
Contact proceedings are less black and white. Where there are two apparently reasonable parents matters can often be successfully resolved by mediation. It is often the case that it is simply a matter of misunderstanding or lack of communication. It may be a case where the couple, one or both, are acting out their anger and feelings through the children. It is almost invariably the case that both parents will insist that they are acting in a way they perceive to be in the best interests of the children.
There are cases where the parent with care will sabotage contact with the intent of cutting the other parent out of the children's lives. There will be cases where the absent parent is deliberately trying to make life difficult for the other spouse. It is often the case that contact goes smoothly until one or other of the parents meets someone else. It is then that the finality of the break sinks in.
I consider that of all the areas of divorce/family law the Court process is the most unsuitable in cases of contact. A fair result is when both parents feel equally aggrieved by the Court's decision. It really is, in most cases, far better to try to resolve matters face to face, through trusted friends acting as arbiters, or through mediation.
Other Orders
There are two other kinds of order the Court can make, prohibited steps and specific issue orders. The distinction between these two names is rarely important. They are designed to deal with the sort of problems which arise, even if the parents are agreed on the bases of residence and contact. Frequent examples might be the parent with care changing the children's schooling without consulting the other. Another might be disagreement as to holiday arrangements.
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