Child Care and disputes involving children

Introduction
What is Parental Responsibility?
Who has Parental Responsibility?
Orders that can be made in Private Law Proceedings
The usual procedure in a private dispute about children
How the Court arrives at its decision
The Welfare Principal and the Welfare Checklist
Care and Supervision Proceedings
Adoption

Introduction

Our firm has comprehensive expertise and experience in handling children law disputes of every kind.  This includes experience acting with Children as members of the Children Order Panel (Northern Ireland)

The types of dispute involving children fall into 3 categories.  These are

(a) Private Law disputes - usually Article 8 (or section 8) disputes between parents about where the child should live, rights of contact by the non-resident parent and disputes about the exercise of parental responsibility.  It also includes proceedings in which an application is made for a Parental Responsibility Order.

(b) Public Law disputes (excluding Adoption)  - where at least one of the parties to the proceedings are an Authority and in many of these proceedings so also is the child.  These proceedings include all proceedings under the Children Act 1989 or the Children (NI) Order 1995 which are not private law proceedings.  They include Care and Supervision proceedings, Emergency Protection Proceedings, Education Supervision Proceedings, Secure Accommodation Proceedings.  It also includes proceedings after a care order is made such as contact applications and discharge proceedings.

(c) Adoption Proceedings - like other public law disputes, there is an authority involved (the Adoption Agency) but unlike Public Law disputes in category (b) the Welfare of the child is not paramount. This can lead to a clash of philosophy between the two categories of public law proceedings. 

What is Parental Responsibility?

Parental responsibility is defined as 'all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property'.  Further guidance on exactly what that means is set out in the Guidance and Regulations Volume 1

"Parental responsibility is therefore concerned with bringing the child up, caring for him and making decisions about him. It does not affect the relationship of parent and child for other purposes. Thus, whether or not a parent has parental responsibility for a child does not affect any obligation towards the child, such as a statutory duty to maintain him, nor does it affect succession rights.

The importance of parental responsibility is emphasised in the Children Act [Order] by the fact that not only is it unaffected by the separation of parents but even when courts make orders in private proceedings such as divorce, that responsibility continues and is limited only to the extent that any order settles certain concrete issues between the parties. That arrangement aims to emphasise that interventions by the courts where there is family breakdown should not be regarded as lessening the duty on both parents to continue to play a full part in the child's upbringing."

Who has Parental Responsibility?

The following have Parental Responsibility for a child

(a)  the Mother of the child
(b)  the Father of the child provided he is or was married to the mother during the lifetime of the child.
(c)  the Father of the child if he appeared on the Child's birth certificate since April 2002
(d)  the Father of the child if he has a parental responsibility order
(e)  Anybody who had a residence order in respect of the child.
(f)   If the child is subject to a care order, the Authority during the term of the care order
(g)  If the child is subject to an emergency protection order, the authority during the term of the order
(h)  If there is no person with PR when the last person with PR dies, the person appointed under the will of the last PR
(i)   If there has been an adoption order, the new adoptive parents.  An adoption order is the only kind of order which can take away PR from the child's parents.

Note an unmarried father who does not have PR can apply for a parental responsibility order

Orders that can be made in Private Law Proceedings

The usual private law Orders that can be made in Private law proceedings under the Children Act / Order are:

(a)   A parental responsibility Order  (s.4 C.A. / A.4 C.O.)
(b)   A change or name order (s.13 C.A. / A 13 C.O.)
(c)   A residence order (s.8 C.A. / A. 8 C.O.) which is an order settling the arrangements to be made as to the person with whom a child is to live
(d)   A contact order (s.8 C.A. / A. 8 C.O.) which is an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise  to have contact with each other
(e)   A prohibited Steps Order (s.8 C.A. / A. 8 C.O.) which is an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the [the children Act or order] shall be taken by any person without the consent of the court
(f)   A Specific Issue Order (s.8 C.A. / A. 8 C.O.) which is an order giving directions for the purpose of determining a specific question which has arisen, or    which may arise, in connection with any aspect of parental responsibility for a child

The usual procedure in a private dispute about children

Most but not all private law disputes run to a similar pattern which is described here..  The proceedings usually begin when a formal application is filed in the court.  This is a prescribed form which sets out information about you, other people with parental responsibility and what order you are seeking.  The Court then processes your application and fixes a date for a first hearing.  At the same time, the papers are served on your opponent.  At the first hearing, the court makes directions.  The usual directions are

(1)  that you will be asked to file a witness statement (usually within 14 days) and your opponent will be allowed to serve one as well.
(2)  that a court welfare officer is appointed to prepare a report for the court within a certain time..
(3)  another hearing is fixed just after the Welfare Officer's report is due.

Before the Welfare officer compiles his/her report, s/he is required to make an investigation into the circumstances of the dispute.  S/he will check social service records, have an interview with you and your opponent.  S/he will also see the child.  If the child is old enough, s/he will engage with the child and find out the child's wishes and feelings.  Before writing the report, the Welfare officer will consider the welfare checklist.  Based on his/her investigation s/he will make a recommendation to the court of what order should be made, unless s/he feels that more investigation is needed or that certain issues of fact need to be determined by the court beforehand. 

Both parties will be told of the contents of the Welfare officer's report.  Quite often, this is the point at which solicitors take instructions and negotiate.  Many disputes are settled at this point. 

If there case is not settled, the court will fix a date for a final hearing.  In exceptional cases, one or more of the parties will use expert evidence. Special directions are required from the Judge if a party wants to use an expert.  

At the final hearing, the Welfare officer will almost certainly be required to give evidence on oath.  After hearing all of the witnesses (including expert witnesses (if any)) the court decides what order to make.

How the court arrives at its decision

Courts have to decide relevant issues of fact.  Sometimes it will be necessary to hear all of the witness evidence before it can reach a determination of fact.  However, determining fact is usually the smaller part of the decision-making process in a dispute involving a child.  This is because most of the relevant facts of the case are already known and are not disputed.  The court will attach considerable weight to the opinion of the welfare officer.  It is rare for the Judge to disagree with the Welfare officer but that does sometimes happen.

Having put together all the relevant facts of the case, the Judge then considers the Welfare Provisions of the Children Act / Order.  This includes consideration of the welfare checklist, the "no order" principle and the "no delay" principle.  The welfare checklist is exceptionally important.  If it is applied properly, the right decision for the child will almost certainly emerge.  The Welfare checklist is set out in the next section.

The Welfare Principle and the Welfare Checklist

The central welfare principle is that the welfare of the child is paramount.  In determining the Welfare of the child, the court has to have regard to the principle that delay prejudices the child's welfare, the welfare checklist and the principle that no order should be made unless it is better for the child than making no order.

The welfare checklist is as follows:

• the ascertainable wishes of the child concerned (considered in the light of his/her age and understanding)
• his/her physical emotional and educational needs
• the likely effect on him/her of any change in circumstances
• his/her age, sex, background and any characteristics of his/hers which the court considers relevant
• any harm which he/she has suffered or is at risk of suffering
• how capable each of his/her parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his/her needs
• the range of powers available to the court under this Act in the proceedings in question

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