SECTION 8 – CHILDREN ACT 1989
This Act introduced new concepts of Residence (formerly custody), Contact (formerly access) and Parental Responsibility. The Court also has the power to make other Orders including Prohibited Steps and Specific Issue Orders. However, these ‘terms’ were again changed, on 24th April 2014, when the single Family Court came into force. Contact is now referred to as “ who the child spends time with” and Residence, as “who the child lives with”.
1. This is the legal term which is used to describe the responsibility that a person has for a child in terms of making decisions that will shape the future of the child such as where the child will live, what religion the child will follow, where the child will be educated and consent to medical treatment.
2. Where the parents of a child are married at the time of birth they both share Parental Responsibility or if they subsequently marry the father automatically acquires Parental Responsibility. Where parents are unmarried the mother will always have Parental Responsibility and by completion of a Parental Responsibility Agreement may share it with the father. An unmarried father may also apply to the Court for an Order that he has Parental Responsibility. Since 1st December 2003 a father who is not married to the mother at the time of the child’s birth will have Parental Responsibility if he is present at the time of the registration of the birth and he is named as the father on the Birth Certificate.
3. Parental Responsibility may also be gained when another Children Act Order is made, for example, recording who a child lives with (formerly Residence) or Special Guardianship Order provides Parental Responsibility in favour of the holder or holders of the Order and a Care Order provides the same for a Local Authority. Parental Responsibility can be shared and is rarely lost.
4. Step-parents can also acquire Parental Responsibility by virtue of a Step-Parent Parental Responsibility Agreement, provided all those with Parental Responsibility agree or by Order of the Court.
Who a Child Lives With (formerly Residence)
An Order stating who a child lives with settles the arrangements as to the person with whom a child is to live. Such an order automatically gives Parental Responsibility to any person without it in whose favour it is made for as long as the Order is in force. The making of such an order will not end the Parental Responsibility of any other person who has Parental Responsibility. It does not affect the legal relationship between the child and their parent. It also means that the ‘holder’ of the Order may take the child out of the Country for up to a month in any year without the consent of any others with Parental Responsibility. Where there is no Order in place then it is necessary for the person who wishes to take the children out of the Country to obtain the consent of all those with Parental Responsibility. Regardless of whether or not there is an Order in place, any of those with Parental Responsibility has the right to details of where the children are going, their travel arrangements and where they will be staying.
Time With (formerly Contact)
An Order recording who a child ‘has time with’ requires the person with whom a child lives or is to live to allow the child to visit or stay with a person named in the Order. Alternatively the Court can make an Order for indirect contact e.g. via telephone calls, letters, emails etc. There may be more than one Time With Order made in respect of a child. There is a presumption in favour of contact between the child and the non-resident parent. ‘Time With’ Orders are always for the benefit of the child and not the party applying.
Prohibited Steps and Specific Issue Orders
A Prohibited Steps Order limits when certain parental rights and duties can be exercised. A Specific Issue Order contains directions to resolve a particular issue in dispute in connection with a child. A Prohibited Steps or Specific Issue Order could be obtained where there is a dispute as to the child’s education, determining whether the child can be taken abroad or preventing a specific person from seeing a child.
Under the Children Act the Court will only make an Order where one is needed and is in the best interests of the child concerned – otherwise no Order will be made. When making any decision the Court’s paramount consideration is the welfare of the child. The Court recognises that delay is likely to be harmful to the child’s welfare.
In deciding whether an Order should be made the Court will have regard to:-
1. The ascertainable wishes and feelings of the child concerned (considered in the light of the child’s age and understanding);
2. The child’s physical and emotional needs;
3. The likely effect of the child of any change in his/her circumstances;
4. The child’s age, sex, background and any other characteristics which the Court considers relevant;
5. Any harm which the child has suffered or is at risk of suffering;
6. How capable each of the child’s parents and any other person in relation to whom the Court considers the question to be relevant is of meeting the child’s needs.
7. The range of powers available to the Court under the Children Act in the proceedings in question.
a. If both parents can agree where the children should live and when and how the children shall see the non-resident parent then there is no need for a Court Order.
b. If reasonable contact between children and a non-resident parent cannot be agreed between the parents it will often be ordered by the Court at a frequency of every other weekend and part of school holidays but possibly more for very young children under school age. Each case will depend upon the particular facts.
c. Either parent can be the full-time carer of children. The Courts look at what is in the best interests of the children and at the status quo. That is, it is preferable to keep children in the home they have known and going to the same schools but this is not always possible.