Fact Sheets

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Children's Act Issues

When a court determines any question with respect to the upbringing of a Child, the Child's welfare shall be the paramount consideration. The Court must have regard to the criteria set out in Section 1(3) of the Children's Act 1989, known as the Welfare Checklist, and this is as follows:

  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 questions to be relevant, are of meeting his needs.
  7. The range of powers available to the court under this Act in the proceedings in question.

The Court will obviously also need to enquire as to the current residence of the Child(ren) and any other accommodation available for the Child(ren) to live in and any other people living in any such accommodation. The Court will also wish to know what arrangements will be made for the care of the Child(ren) during working hours and holidays if either or both Parent works.

There are two other principles which underlie the Children's Act 1989. The first is that delay is deemed prejudicial to the Child's interests. The Court will therefore regulate the timing of cases by Directions or preliminary Hearings. Secondly, the Act also assumes that the parties will do their best to resolve differences by negotiation and co-operation and indeed the Court has a positive duty not to make an Order unless it is in the interests of the Child to do so. This is referred to as the non-intervention principle.

The Court can make the following Orders:

  1. Contact, which is an Order requiring the person with whom the Child lives or is to live to allow the Child to visit or stay with the person named in the Order or for that person and the Child otherwise to have contact with each other.
  2. A residence Order, which is an Order that settles the arrangements to be made as to the person with whom a Child is to live.
  3. A prohibited steps Order. This is an Order that no step which could be taken by a Parent in meeting his parental responsibility for a Child and which is of a kind specified in the Order shall be taken by any person without the consent of the Court.
  4. A specific issue Order. This gives directions for the determination of a specific question which has arisen and which may arise in connection with any aspect of parental responsibility for a Child.
  5. A parental responsibility Order. Parental responsibility is defined as all the rights, duties, powers, responsibilities and authority which by Law a Parent of a Child has in relation to the Child and his property. The Mother of a Child has parental responsibility for the Child, however, only a married Father automatically has parental responsibility for his Child.

An unmarried Father can, however, apply for a parental responsibility Order and the Court will consider whether the association between the Parents was sufficiently enduring, whether the Father has shown sufficient commitment to the Child, the degree of attachment which exists between the Father and the Child and the Father's reasons for applying for the Order. Alternatively, parental responsibility can be granted to an unmarried Father by way of agreement with the Mother or, as from 1st December 2003, by being registered as the father of the child on the child's Birth Certificate.

Parental responsibility may be acquired for a Child by other means and by other people. For example a person may acquire parental responsibility by being granted a residence Order, or by seeking an appointment as guardian of the Child or by adoption. Step-Parents do not on marriage automatically acquire parental responsibility for the spouse's Children. Parental responsibility lasts either until the Child is 18 or in certain circumstances at 16.

Parental responsibility may be shared with others. It is exercisable by each person who has it individually without a duty to consult the others, with certain exceptions.

You need to have parental responsibility to:

  1. Appoint a guardian for the child in the event of death.
  2. Consent to the adoption of a Child.
  3. To gain access to the Child's medical records.
  4. To consent to a Child's marriage.
  5. Consent of all those with parental responsibility or the Court's permission is required for removal of a Child from the country, failing which a criminal offence is committed under Section 1 Child Abduction and Custody Act 1985.

Powers and duties of those with parental responsibility include:

  • lawful correction
  • application for or veto of Child's passport
  • right to represent Child as Next Friend in Court proceedings
  • right to name or re-name Child unless there is a dispute between the Parents as to the Child's name
  • right to decide a Child's education and a duty to send the Child to School
  • to make a decision about a Child's religion
  • consent to medical assessment, examination or treatment.

If an Application to the Court is necessary, it could take at least 3 to 12 months to resolve matters.

Colemans Solicitors LLP August 2007