Children

The innocent victims

When there is a breakdown of a relationship, it is often the children in the family who suffer most. It is important to remember that at this stressful time for everyone, it can be worse for the children, as they feel that their loyalties might be in question. We normally advise that the adults involved should try to help the children to maintain contact with both parents, and to minimise any personal animosity. No one wants children to suffer unduly as a result of relationship breakdown, but without care and thought they can easily do so.

Some Do’s and Don’ts

Here are some things that we have found to be helpful over the years:-

Do:

  1. try to give the children as much information as you can about what is happening, and what is likely to happen next, particularly if either the child or the other parent is going to live in a new home. Be reassuring.
  2. encourage the children to go on having a relationship with the other parent, the rest of their extended family and any other people important to them.
  3. listen to the children, giving them time to express feelings and worries.
  4. try to agree with the other parent what the children will be told (if possible, talk to them together if you can), what the school will be told and what any other important people will be told.
  5. think about a plan for their independent parenting. Please ask us for a copy of a Parenting Plan

Don’t:

  1. blame the other parent in front of the children, or undermine their relationship with the children
  2. allow the children to feel that it is their fault
  3. involve the children as “go betweens”, or burden them with information that should remain
  4. confidential to the adults only
  5. assume that a quiet child is OK – he or she may be finding it hard to express concerns when you are upset yourself. Perhaps someone else can help and listen to the child

Children and the Law

Child welfare

Any court would need to work with the “Welfare Checklist” which is set out in the Children Act 1989, and is listed here.

The court must consider:

  1. the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)
  2. their physical, emotional and educational needs
  3. the likely affect on them of any change in circumstances
  4. their age, sex, background and any characteristics which the court considers relevant
  5. any harm which they have suffered or are at risk of suffering
  6. how capable are each of the parents, or any other person whom the court considers the question to be relevant, of meeting the childs needs
  7.  the range of powers available to the court under the Children Act in the court proceedings in question.

To ascertain the wishes and feelings of a child, it is rare for that child to have separate legal representation, but he or she may have told someone (perhaps a teacher or relative) what they want to happen, and this evidence can be brought to court, usually by a report commissioned by the court.

Parental responsibility

The law defines Parental Responsibility (“PR”) for a child as:
“…all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child and his property…”
As parents, responsibility for our children seems obvious, but in law the right to make important decisions (e.g. a say in religious upbringing/schooling/marrying if under 18/medical care etc.) in respect of a child can depend on whether you are married or not.

Mothers have PR automatically, whether married to their child’s father or not.

Fathers who are married to the child’s mother at the time their child is born have PR automatically.
Fathers who are not married to their child’s mother when the child is born do not automatically have PR. However, since December 2003, if the father is registered on his child’s birth certificate as the father, he automatically has PR.

Fathers who are not married to their child’s mother and are not registered on the child’s birth certificate as the father after December 2003 can acquire PR by:

  • marrying the child’s mother; or
  • agreeing with the mother to formally enter into a PR Agreement; or
  • applying to the court for an order; or
  • obtaining a Residence Order from the court for the child to live with him

Others, apart from the child’s parents, can obtain PR for a child by:

  • an appointment as the child’s guardian coming into force, or by a court appointing a guardian; or
  • the court making a care order in favour of a Local Authority; or
  • the court making a freeing order in favour of an adoption agency; or
  • the mother, and any others with PR agreeing to a step-parent having PR or if the step-parent applies successfully to the court for an order for PR;
  •  a person who adopts a child would automatically acquire PR for that child and PR would cease for the biological parent(s).

How we can help

Our Family and Relationships team have wide experience of helping parents to achieve satisfactory agreements about child care. But obviously if agreement cannot be reached we are equally well placed to take matters through the courts.

Please contact us at familyandrelationships@glazerdelmar.com if you would like more information about children.