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The advent of the Children Act 1989 changed the arrangements relating to custody, care and control, and access, as they used to be called.
The Act introduced three new arrangements in connection with children, namely, residence, contact, and parental responsibility. Although the Act is over 15 years old, people still muddle the terminology although, broadly speaking, they mean the same thing. I will refer to the ‘new' 1989 terminology as the courts no longer use ‘custody, access or care and control'.
In brief, a residence order will determine where and with whom the child[ren] will live. In practice, no orders are made as to residence unless it is necessary to make such as order.
A contact order sets out the types of contact that usually a non resident parent can enjoy with a child and the frequency of it. It should be remembered that it is the child's right to see his or her parent and not the parents' right to see the child. Grandparents can apply for contact with their grandchildren but need permission from the court first in order to do so.
Parental responsibility is shared jointly between all married parents, even after a divorce, so long as the child is under 18. Unmarried fathers can acquire parental responsibility either by agreement with the mother of the child[ren] through a Parental Responsibility Agreement, by order of the court, and more recently, if the father's name is on the birth certificate of the child[ren].
One of the principles of the Children Act is that the courts will only make orders if it is better for the child to do so. This applies to all the orders the court has power to make.
The court also has power to make two other types of order, namely prohibited steps and specific issue orders.
A prohibited steps order limits when certain parental rights and duties can be exercised. e.g. an order to prevent a child from being taken out of the country.
A specific issue order contains directions to resolve a particular issue in dispute in connection with the child e.g. a child's education or religious upbringing.
The court will give the following three principles the highest priority:
The children's welfare is of the paramount importance;
The court shall have regard to the general principle that any delay is likely to prejudice the welfare of the children; and
The court shall not make an order unless it considers that doing so would be better for the children than making no order at all.
In deciding whether an order should be made, the court will have regard to the following factors which are commonly referred to as "the Welfare Checklist"
the ascertainable wishes and feeling 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 will always be the welfare of the child. The court recognises that delay is likely to be harmful to the child's welfare, which is entirely separate to the delay when listing a matter for hearing if the court calendar is exceptionally heavy or busy. If the matter is urgent, then it is possible to request an early date due to the nature of the application.
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