Child Residence and Contact

In the event of a separation of a couple whether married or otherwise, court orders will only be made in respect of a child or children if there is a serious dispute between the couple as to the arrangements for the children.

The courts do not wish to have to make orders in respect of the arrangements for the children on the breakdown of a relationship. The courts take the view that up until the time of the separation of the couple, the parents have been able to make appropriate arrangements for the children and should be encouraged to do so even after separation. 

As a consequence, in most divorces absolutely no orders will be made by the divorce court as to the arrangements for the children.   If the parties have agreed between themselves as to the arrangements for the children, the court take the view that no order is necessary and will leave it to the parties to organise matters between themselves.

If there is a dispute between the parties as to where a child or children should live, then one or other party could apply to the court for a residence order.  A residence order is an order that was formerly described as a custody order.

In the event that the dispute is not about who should be looking after the child but how much contact there should be between the child or children and the non resident parent, then an application could be made for a contact order.  This was formerly known as an access order.

If there are court proceedings regarding the children there will usually be involved more often than not an organisation called CAFCASS. This organisation is the “eyes and ears” of the Judge. It is the duty of one of the members of CAFCASS to make enquiries on behalf of the Judge.  A person from CAFCASS will speak to the parties who are in dispute and if the children are old enough, will also speak to the children.   A member of CAFCASS will then report back to the Judge and will give a recommendation to the Judge as to the appropriate arrangements for the child. The Judge though has the final say as to what will be the arrangements.

In deciding upon the appropriate arrangements, Parliament has set down a checklist of matters which both the member of CAFCASS and the Judge have to consider. The checklist is as follows:

• The ascertainable wishes and feelings of the child or children concerned considered in the light of their age and understanding.
• The child or children’s physical, emotional and educational needs.
• The likely effect on the child or children if there is a change in the existing arrangements.
• The age, sex, background and any characteristics of a child or children which the court considers relevant.  
• Any harm which the child or children may have suffered or be at risk of suffering.
• How capable each of the parents of the child are in meeting the needs of the children.

In making any decision as to the arrangements for a child or children, a Judge will consider all of the above factors and will apply those factors in deciding what is in the best interests of the child and thereby what arrangements should be put in place.  

Parental Responsibility

Please note that the parents of any child who is born within a marriage will both have parental responsibility for a child. Parental Responsibility is the element which gives a parent the right to make decisions with regard to the welfare of a child. It is the element which gives the parent the right to make decision as to a child’s schooling, medical needs etc.

If a couple separate and divorce, each parent still retains parental responsibility.

If the parents are able to make arrangements between themselves as to the child or children, then in all probability they will continue to jointly exercise parental responsibly.

The expectation is that parental responsibility will continue to be exercised jointly.    If though one parent has no interest in exercising parental responsibility (perhaps disappearing out of the lives of the family) then the remaining parent can exercise parental responsibility by him or herself.

In a situation where there are parents who both have parental responsibility and cannot agree on how that parental responsibly should be exercised, (eg whether a child should have a risky medical operation or not) then it may be necessary to make an application to the court to decide on the exercise of that parental responsibility.  An application would usually be made for a “Specific Issue Order” where the court would be asked to address the specific issue of whether the medical operation should go ahead or not.  

In relation to unmarried couples, a mother will automatically have parental responsibility for a child.   In relation to any child born before 1 December 2003 the father will not automatically have parental responsibility. In respect of any child born after 1 December 2003 the father will automatically acquire parental responsibility provided that his name is on the birth certificate as the father of the child. 

If a father does not have parental responsibility, this can be obtained by either entering into a formal written agreement with the mother using a prescribed Agreement or alternatively, an application could be made to the court for the father to be granted parental responsibility.