The welfare of your child is probably the most important thing in your life but, unfortunately, it is not uncommon for there to be disputes about the children when relationships breakdown. It is always in everybody’s best interest to settle matters. However, on some occasions it may be necessary to revert to the courts and lawyers to help settle matters. This is where you need honest, sympathetic and effective advice.
Where the mother or a father of a child are married, they will both automatically acquire parental responsibility. When the parents are not married, only a mother will automatically acquire parental responsibility unless the father is named on the birth certificate for any child born on or after 1 December 2003.
If this is not the case, the father can still acquire parental responsibility by one of four ways:
- by obtaining the mother’s consent;
- by applying to the court for a parental responsibility order;
- by marrying the mother; or,
- by obtaining a residence order.
Change of child’s name
Sometimes, following the breakdown of a relationship one party may find that they have full time care of the children and may wish to change their child’s name. There are many situations in which this may occur. The parents may not be married and the father may wish for the child to carry his surname or a mother may wish to revert back to her maiden name following a divorce and may also wish to change the child’s surname. You will need the consent of the parent and any other person who has parental responsibility for the child.
How do the courts deal with disputes over the children? If, as a last result, a dispute over children results in court action the court have the following powers:
The court will determine with whom the child is to live.
This determines how often the child will see the parent with whom they do not reside. The frequency of contact can be decided by the court and the way that contact operates. This means the court can set down when and where the contact will take place and if it is to be staying contact, which means the child will stay overnight with the parent they do not reside with.
If parents cannot agree over where the child goes to school or what religion they should practice or should one parent wish to permanently remove the child from this country and the parents cannot agree, the court, having considered all the circumstances, will make the decision in the best interests of the child.
Prohibited Steps Order – This will limit either parent in what they can and cannot do with the child for example remove the child from the country.
The court will give the following three principles the highest priority:
- The child’s welfare is of paramount importance;
- The court shall have regard to the general principle that any delay is likely to prejudice the welfare of the child; and,
- The court shall not make an order unless it considers that doing so would be better for the child than making no order at all.
In deciding whether an order should be made, the court will have regard to;
- The ascertainable wishes and feelings of the child concerned (considered in the light of the child’s age and understanding);
- The child’s physical, emotional and educational needs;
- The likely effect on the child of any change in his/her circumstances;
- The child’s age, sex, background, and any other characteristic which the court considers relevant;
- Any harm which the child has suffered or is at risk of suffering;
- 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;
- The range of powers available to the court under the Children Act in the proceedings in question.
Under the Children Act, the court will only make a formal residence order, or any other order, if there is a dispute – otherwise no order will be made. There is also a presumption that the court should not intervene unless it is in the best interests of the child. When making any decision, the court’s paramount consideration is the welfare of the child.
You may have heard of CAFCASS Cymru – the Children and Family Court Advisory and Support Service Wales. CAFCASS Cymru advises the courts on what they consider to be in the best interests of the child. They work with both children and their families and make recommendations to the court. CAFCASS can carry out checks with other organisations as part of their work to ensure the safety of children.
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