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Children Act
1989
Parental Responsibility
& Parental Responsibility agreements
Testamentary
Guardians for children
Child maintenance
and the Child Support Agency
Children Act
1989
This is the
Act that sets out most of the law relating to children and parents
both in private cases, and “public” - i.e. care type -
cases.
If you are a
parent, step-parent, grandparent or someone who lives with a child
that is not your own, you may be able to ask the Court for help
if you are concerned about a child's welfare. The Court's overriding
concern is the welfare of the child or children and is obliged to
consider what is in each child's best interests. The interests of
any adults are only of concern to the Court when they have an effect
on the best interests of the child or children. Even if you are
not in the above categories, anyone concerned about a child's welfare
can ask the Court for leave to make a full application.
The main “non-care
type” orders sought through the courts are Contact (formerly
access) and Residence (formerly custody), which are self-explanatory.
It is also possible to ask the Court to decide on a “Specific
Issue” – e.g. education or medical decisions, or changing
a child's surname – or to ask the Court to forbid something
– a “Prohibited Steps Order”– e.g. where someone
has threatened to take a child abroad.
If a parent
is unhappy about the way in which his or her child is being cared
for, or feels that the child ought to be seeing more of the non-resident
parent, then he or she can apply to the Court using a simple application
form. The fee charged by the Court is presently £120.00 per
application, but this can be reduced or waived by the Court for
those the Court considers unable to pay or pay in full.
Once the application
is filed with the Court, a date will be given for a short initial
hearing where the Court will see if the parties can agree on the
way in which to go forward. If this is not possible, then the Court
will give “directions” on the way in which the case will
be conducted from then on. Often this will include the commissioning
of a “ Cafcass Report”. “Cafcass” (Children
and Family Court Advisory and Support Service – formerly Court
Welfare) is a service attached to the Courts and therefore independent
of the parties. A Cafcass Officer (Family Reporter or Reporting
Officer) will meet with both parties and speak to the child or children
concerned so as to gain information and carry out an assessment
of the case. The Cafcass Officer has been described as the “eyes
and ears of the Court” and his or her view is very important
when the Court comes to consider the case again.
After the Cafcass
Officer has provided a written report, there is usually another
short hearing for the Court and the parties to consider the recommendations
and again try to settle the case using the Cafcass Officer's conclusions
as a basis for agreement. However, if this is not possible, the
Court will usually then make arrangements for the case to be given
a final hearing date. Sometimes further reports may be requested,
and the Court can make virtually any order it feels is best for
the child concerned, so sometimes the outcome is something that
neither party considered. It is therefore very important for the
person applying for the order to consider his or her situation very
carefully not just at the start of the case, but at every stage
during it.
Parental Responsibility
& Parental Responsibility agreements
1. Who has parental
responsibility?
A father and
mother of a child who are married to one another automatically have
parental responsibility for the child. If the parents are not married
to one another, only the mother has parental responsibility unless
the father's name and declaration are on the child's birth certificate.
Where a person has a Residence Order for a child they have parental
responsibility; for example, a grandparent or other relative or
person with whom the child is actually living (or has been living)
may seek residence. Just because another person acquires parental
responsibility does not mean that the parent or parents lose it,
as more than two people can have parental responsibility at the
same time.
English law
does not try to define in any detail what parental responsibility
means. Here are a few things that are included in the term:
(a) Looking
after the child
Providing care, especially for the younger child, and housing for
all dependent children is one of the essential responsibilities
of any parent.
(b)Contact
with the child
Although it may not be an absolute right, a parent not living with
the child has a strong claim to contact.
(c)Medical
treatment
Generally speaking, those with parental responsibility can give
consent to medical treatment; but so too can a mature child give
consent to his or her own treatment.
(d)Education
Parents have a responsibility both as parents, and at law, to ensure
their child is educated.
2. Parental
Responsibility
The child's
mother and a married father have Parental Responsibility automatically.
As from December 2003 so does an unmarried father whose name appears
on the child's birth certificate. Parental Responsibility is also
given as part of other orders such as Adoption, Residence or Care
Orders. The child's father (and from late 2005 also a step-father)
can also acquire Parental Responsibility: -
(a) Parental
Responsibility Agreement
Parents may agree that the father (or step-father) should have parental
responsibility, but that agreement is only effective if a formal
document is signed by both parents and witnessed by a court official.
These are very straightforward documents, and if the parents are
in agreement, there is no difficulty about recording this in a Parental
Responsibility Agreement. However, it does have a significant legal
impact and legal advice should always be sought before entering
into such an Agreement
(b) Parental
Responsibility Order
If a mother refuses to agree to the father (or step-father) having
parental responsibility, then he can apply to the Court for a Parental
Responsibility Order.
(c) Residence
Order
By obtaining a Residence Order in his favour the father (or step-father)
will have parental responsibility and at the same time the Court
must make a Parental Responsibility Order.
(d) Marriage
of father & mother
Where the father and mother of the child marry the child is legitimated
and as result the father then has parental responsibility.
(e) Appointment
as child's guardian
The father can be appointed guardian by the child's mother. His
appointment takes effect on her death and as guardian he then has
Parental Responsibility.
3. Financial responsibility for the child
Even if the
father does not have Parental Responsibility he does not cease to
be the child's parent, biologically and at law, and he is still
liable to maintain the child financially.
Testamentary
guardians for children
Everyone should
have a will, but it is especially important to have one when there
are children under 18 involved. Even if your first choice for a
guardian would be the other parent, who may or may not have Parental
Responsibility , you should still consider what you would want to
happen to the children if the other parent died first, or at the
same time. When a parent or other person with a Residence Order
appoints a guardian in their will, that guardian will take over
Parental Responsibility for the child immediately upon the resident
parent's death. This will also happen where there is no one else
with Parental Responsibility. Even if there is a surviving person
with Parental Responsibility , then the guardian appointed by the
parent's will still has rights to ask the court to alter the arrangements
for the children if he or she feels it is necessary.
Making a will
is not expensive, and does not have to be made “for all time”.
They are easily reviewed or amended these days. Not only should
you consider the position in respect of a guardian for the children,
but you can also select your own Trustees to administer the children's
inheritance and fix a later date for the children to receive significant
money – i.e. 21, 25 or 30 years of age. Without a will, you
will not have any control over the destination of your estate.
Child maintenance
and the Child Support Agency
The Child Support
Agency took over the calculation of Child Support from the Courts
in 1993. Since then the Agency has had a very bad press, some of
which is deserved, some of which is not.
The Agency now
uses a fairly simple but rigid formula to calculate a figure for
child maintenance, which can give an unrealistic result when considering
other circumstances in a particular case. The formula allows for
a fixed percentage of the Non-Residential parent's net income –
between 12½% and 25% - regardless of housing costs, loan
repayments etc. There will be a reduction of 1/7 th for each night
on average the child(ren) stay overnight with the Non-Resident parent,
provided there are at least 52 overnight stays a year.
It is still
possible to come to an arrangement "outside" the Child
Support Agency, although the Courts have a very limited jurisdiction
to deal with child maintenance. Where the parties can reach agreement
on an amount of child maintenance, usually in line with the Child
Support Agency's formula - the agreement can be made into a “written
maintenance agreement”, or as part of a divorce financial Consent
Order. Generally, where there is a written agreement or order, the
Child Support Agency is less likely to become involved with child
maintenance. The agreement or order is enforceable itself as a contract
between the parties.
© Karen
O’Neill & Co., Family Law Solicitors 2004
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