Until the Children Act 1989 came into force, there was always an order in respect of the children of a marriage even though, frequently, the parents were able to agree matters. After the Act came into force, the courts became less busy with this type of order, which was often dealt with by consent between the parties. The Act also changed the terminology for good reason. The old types of order were not all that people believed.
TYPES OF ORDER - OLD AND NEW
The types of order available under section 8 of the Act, and their forerunners, are examined here. The most important are:PARENTAL RESPONSIBILITY ORDERS
These are the equivalent of the old custody order. Custody was not, in fact, the right to have the child live with either one of the parents. It was the rights and responsibilities of a parent. The Parental Responsibility Order is therefore more accurately named!Such an order does not give the parent with whom the child is not living the chance to interfere with the day-to-day regime and upbringing of the child but it does carry with it the right to be consulted about major events and decisions concerning the child. These might include the religion within which the child is brought up, the type of education that the child receives and, certainly, whether the child is to be allowed to marry before reaching the age of 18 (for which the parent's consent is necessary).
Remember that if you are a married parent you automatically have parental responsibility and no order or agreement is necessary. If you are not married you can obtain parental responsibility by agreement or by applying to the court.
See a Solicitor who can help you with the documentation and procedures for a Parental Responsibility Agreement and advise and act if an order is necessary.
RESIDENCE ORDERS
These are the equivalent of the old orders for care and control. The new name is again self-explanatory. The order places the child in the home of the parent to whom it is granted.CONTACT ORDERS
These are the equivalent of access orders. They allow the non-residential parent to see the child. In fact contact is the right of the child and not of the parent but because, in cases of difficulty, it is the parent who applies for it the formality is often overlooked (except by the courts).Contact can take many forms:
- Staying contact involves the child staying with the non-residential parent for short breaks at weekends or even longer periods of holiday.
- Visiting contact involves seeing the child for the day either at home or on a trip out.
- Indirect contact is sometimes required if there are concerns over whether it is safe or appropriate for the child to be alone with the parent. It may also be appropriate where there has been a long period of separation and the child has grown away from the non-residential parent.
- Supervised contact, indirect contact or limited visiting contact may be helpful to allow the relationship to recover and, after a period of time, may lead to something a little more extensive.
PROHIBITED STEPS ORDERS
These were introduced by the Act and are, in effect, an injunction to stop a parent from doing anything that is bad for the child. A non-residential parent with parental responsibility could, for example, apply for such an order if the residential parent was ill-treating the child or bringing the child up in a damaging environment.The orders are most often made by a residential mother who has suffered physical violence from the father and who finds that, after obtaining her Domestic Violence Act injunction, he is trying to "get at her" by his behaviour or by what he says to the children. The court is not able to make an order stopping a parent from making derogatory remarks about the other parent - among other things, enforcement of such an order would require evidence of what the parent was saying which could only come from the child. Children do not attend or give evidence at court hearings. Their views are placed before the court by the Court Welfare Officer.
SPECIFIC ISSUE ORDER
This is another product of the Act and is a bit of a catch all order. Anything on which the court needs to intervene and which is not dealt with by one of the other orders will be dealt with on an application for a specific issue order.WHEN WILL THE ORDERS BE MADE AND HOW?
The answer is, hopefully, never. The primary consideration in any matter concerning children is the best interests of the child. It has been recognised that the child's best interests are not served by having court orders relating to them however amicably the parents have applied. Therefore, the Act stresses the "non intervention principle". If no order is necessary, none will be made.It is for that reason that, in a divorce, the Judge will consider the Statement of Arrangements for the Children. If the Judge is satisfied that the arrangements are reasonable a certificate will be issued with the certificate of entitlement to a decree absolute of divorce. The certificate simply confirms that the Judge does not believe that any order is necessary.
If there is a dispute over the children, the parent who wants an order must apply for it in separate proceedings and the court will give directions about what is to be done to bring the application to a final hearing.
WHAT TO DO IN THE EVENT OF A FIGHT
If you are a parent involved in a divorce or other relationship breakdown there are steps that you can take to protect your, and your children's, position.Try to avoid getting into arguments about the children. Certainly, do not try to use them as a lever to obtain a better financial settlement and do not involve them in your difficulties within the relationship. Think about what is best for them. You may well want them to live with you but are you able to look after them properly? Do you have a lifestyle, job and income, which allows you to be there when you are needed? Are you really thinking about the children or are you thinking about what you want (or what your former partner does not want)? Think everything through carefully before you adopt a position. If you are reasonable in what you think should happen you might find that things fall into place fairly easily and that no legal proceedings are necessary.
If that does not work, think about counselling or mediation and make enquiries about what services are available in your area. Find out if there are charges for mediation and whether public funding/legal aid is likely to cover these. If you can arrange mediation without lawyers becoming involved try to do so. The mediator is not there to make an order or to impose a decision on you. Instead, the process is aimed at finding common ground, the real problem and a solution, which you can either accept or reject.
HOW THE COURT WILL DEAL WITH A DISPUTE
The procedure for a dispute under the Children Act is simple but the law is not. The overriding consideration is the welfare and best interests of the child and a statutory checklist setting out the issues, which must be examined, deals with this. The checklist is too long to examine in detail but at the very top of it is the child's own wishes.A child old enough to express his or her wishes accurately will be listened to but younger children may not be capable of saying, or even knowing what they want. It is not at all unusual for a child to want to tell both parents what they want to hear. "I love you Daddy. I wish I could live with you" could be the child's way of trying to reassure the father that he may be gone but that he is not forgotten. It could equally well mean "Mummy won't let me stay up to watch TV and won't buy me the latest Play Station game so I want to stay with you and get those things". Already the issue of what the child wants is getting complicated.
The child will not be brought to court to give evidence. That would not be in its best interests. Instead, at the first hearing of the application (whatever it might be for) the Judge's directions will include an order appointing a Court Welfare Officer to prepare a report for the court setting out what is best for the child. The Court Welfare Officer will carry out investigations and interviews with both parents individually, the child on its own and the child with both parents before completing a report and filing at the court and sending copies to each of the parents or their solicitors.
PRESUMPTIONS AND STARTING POINTS
The law is an imperfect tool for matters concerning children. There are too many emotional issues and considerations for something as clinical as legal philosophy and case law. Furthermore, the limited nature of the orders which a court can make is not necessarily the best way of sorting out a problem. This has been recognised by the Legal Services Commission (formerly the Legal Aid Board) who will not usually give help for court cases concerning children unless the parties have first tried to find their own solution through mediation.There are however some basic presumptions about the relationship between children and their parents. Although these can be rebutted (countered) by evidence from the other parent the court will not allow this to happen without something fairly well supported and compelling.
Firstly, the popular idea that a mother will always beat a father in a battle for residence is fairly well supported. A baby or a young child will usually be seen as better off with the mother unless she is obviously unfit.
However, the father gets a head start in the field of contact. Contact with a child's father is the right of the child and the view is that the child has a strong interest in knowing his or her father and maintaining links with him. The presumption will only be overturned in extreme cases. A father convicted of a serious sexual offence involving children would obviously have an uphill battle to get contact with his own child. However, a father whose behaviour has been suspect might still be able to enjoy a degree of contact even if it is supervised by a third party such as a trusted family friend or a social worker. This principle lies behind the other rule that after a divorce, the mother should not take any step to change the child's name or have the child known by a different name. The link maintained by keeping the father's name is important.
It is not right to say that at the first suggestion of misconduct a parent will lose any chance of contact or residence. The court will not usually accept allegations of misconduct unless they are relevant to the parents' capability and fitness and are substantiated by independent evidence.
One point that is often overlooked is that inalienable differences between parents might lead to a loss of contact by the non-residential parent. Most divorcing couples argue but in some cases the arguments carry on well after they have been separated and to such an extent that neither can find a good word to say about the other. It is likely that such hatred will be picked up by the child and it will not be in the child's best interests to be stuck between two endlessly warring factions. That is not to say that all contact would be refused. Even in cases where, for example, the father cannot bring himself to talk about the mother without making obnoxious comments, the court might still look at supervised contact or even indirect contact by letter, telephone and Christmas or Birthday cards.
