Children

Children and Divorce

When relationships break down, usually both parents are concerned to do their best for the children and ensure that they do not suffer unduly.

When seeking a divorce, it is advisable for both parents to agree what they are going to do about caring for the children, particularly with regard to which parent the children will live with and how often they will see the other parent.

Parental Agreement

When the divorce petition is filed at the court, it will have to be accompanied by another document giving detailed information about the proposed arrangements for the future care of the children. (statement of arrangement for children) The other parent will then be asked whether he or she agrees with these arrangements.

If the parents agree, then the court will usually not interfere (unless the arrangements are seen to be detrimental to the children). In this way, there does not need to be any court order and each party's parental responsibility is not affected by the divorce.

Parental Responsibility

Parental responsibility gives a parent input into their child's health, education, general welfare, religion etc.
One parent cannot change a child's surname without the other parent consent or an order of the court. The child cannot be removed from the jurisdiction of England and Wales for a period in excess of one month without the other parents consent or permission from the court.

Parental responsibility is not synonymous with being a parent. Some parents may not have parental responsibility, e.g. unmarried fathers (see below). Also some people who are not the parents of the child can apply to the court for a residence order (also see below) which confers parental responsibility, e.g. a grandparent with whom a child has lived for a number of years.

If the parents of a child are married, then both the mother and the father automatically have parental responsibility. If they subsequently divorce, this does not change the situation — parental responsibility is not taken away from either parent (unless the child is adopted by someone else).

Court Orders

If the parents cannot agree about the future care of the children, the court may upon an application from one of the parent will consider the issue and make the appropiate order for the benefit of that child.

When making rulings, the court has an overwhelming concern to do what is best for the child. In doing so, it may take the child's own wishes into account — particularly with older children and teenagers. It must also have regard to other factors specified by the law.

What it will not take into account are such questions as the payment (or non-payment) of maintenance, and any questions of "blame" in the divorce proceedings (unless these can be shown to be directly relevant to any dispute concerning the children).

There are four kinds of order (known as Section 8 orders) that the court can make:

Residence Order

This decides where the child will live.

Contact Order

This relates to the child's right to contact with a parent (not vice versa) and spells out when and how often the child will see the non-resident parent. This can include overnight staying contact. It can also rule about contact by telephone or letter.

Prohibited Steps Order

This prevents a specific action being taken in relation to the child, such as taking the child abroad.

Specific Issue Order

This makes a ruling about a specific issue regarding the child, such as which school the child should attend.

Non-parent relatives can also apply for Section 8 orders relating to the child, for instance a grandparent can apply for contact. People unrelated to the child may also apply, subject to some requirements.

Children can make applications on their own behalf. Although usually they will be represented via a parent, it is possible for a child to have his or her own solicitor so that their own voice can be represented either during the divorce proceedings or in any specific issue. Solicitors on the Law Society's Children Panel are permitted to represent children directly.

If married parents are separating but not divorcing, then they are not forced to give the court details of any agreement they have made in relation to the children. They may make an informal private agreement. Alternatively, they may have a formal agreement regarding the children — possibly as part of a separation agreement, after both having taken advice from solicitors.

If the parents fail to agree, or if either parent becomes concerned about any aspect of the child's care, an application can be made to the court for one of the above Section 8 orders.

Unmarried Parents

As from 1st December 2003, the rule is that both parents acquire parental responsibility if the father's name is registered on the child's birth certificate. If this is not done, only the mother has parental responsibility.

If unmarried parents separate, then, just like separating married parents, they may make their own arrangements for their children without recourse to the court. However, if the father does not have parental responsibility, only the mother can make decisions regarding such matters as residence and contact. There are, however, various legal ways in which a father in this position may acquire parental responsibility, either by an application to the court or by consent with the other parent with both signing a parental responsibility agreement.

If the parents cannot agree regarding their children, either of them can apply for a Section 8 order.

Children's Names

Anyone with sole parental responsibility can change a child's name. If parental responsibility is shared and one parent objects to the change, a Prohibited Steps Order may be applied for. For instance, if a divorced woman re-marries and wants to change a child's surname to that of her new husband, the child's father can apply to the court for a Prohibited Steps Order to prevent her doing so. However, the order will not automatically be granted — as with other matters relating to children, the deciding factor will be whether it is best for the child, not the wishes of the parents.

If there is an existing Residence Order, however, the child's surname cannot be changed without the consent of either the other parent or the court.

Contact Mark Goldstein or Claudette Terrode if you would like
advice on any aspect of the Civil Partnerships Legislation

Article first published October 2002
Revised August 2006