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Disputes Involving Children

The Children Act 1989 abolished the concept of ‘custody’ and 'access'. The law provides that married parents both have parental responsibility for a child and will share decision-making. From December 2003, unmarried fathers whose name appears on the child's birth certificate have automatic Parental Responsibility. This only applies to births registered after the 1st of December 2003. The automatic Parental Responsibility can be terminated on application by a parent or with leave of the court by the child himself or herself.

The Court encourages parents to resolve any differences regarding their children themselves, rather than imposing Orders upon them. This principle of non-intervention means that, in most cases, a Court will not make any Order in relation to children, anticipating that, as responsible parents, you will reach agreement as to what is best for your children. The central principle of the Children Act is that the welfare of the child is paramount. The Court will only make an Order if it considers it would be better for the child than making no Order.

When parents cannot agree over arrangements for the upbringing of their children, the following applications can be made under the Children Act 1989:-

  • Child Arrangements Order – this Order can determine the parent with whom the child will live and/or what contact they will have with the parent or other family members with whom they are not living.
  • Prohibited Steps Order – this is an Order preventing certain things happening to the child, for example, an Order preventing the child from being taken abroad.
  • Specific Issue Order – the Court will decide important issues regarding a child’s upbringing such as his education, religion or change of surname.

There is a set procedure when one parent makes one of these applications about the future of their children. There will be a preliminary hearing before the Court and, if agreement cannot be reached at that time, the Judge will give directions requiring each party to file statements detailing their side of the case. This may involve referral to CAFCASS for investigation and the preparation of a report by a Child and Family Reporter.

If, after further investigation, an agreement cannot be reached, a Court will then consider all the evidence together with the report and make a decision after a Full Hearing.

Special rules apply to people other than parents who wish to apply for an Order relating to children.

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