Children Law

We can assist with all manner of children law matters, including:

• Changes of name.
• Child abduction.
• Child arrangements.
• Cohabitation agreements.
• Cohabitation disputes.
• Complex child-related disputes including serious welfare issues, alienation, abuse, religious and cultural issues and specific disputes around education, holidays, medical treatment and more (including specific issue orders and prohibited steps orders).
• Co-parenting or platonic parenting arrangements and agreements.
• Domestic and international surrogacy.
• Donation agreements.
• Family law injunctions (non-molestation and occupation orders).
• Fertility law.
• Financial provision for children.
• Financial settlements after an overseas divorce.
• Immigration.
• Internal and external relocations.
• International divorce.
• Modern families (including litigation on agreed and disputed matters around legal parenthood, surrogacy and child arrangements).
• Parental orders.
• Pre-nuptial and post-nuptial agreements.
• Wills.

When parents separate, disputes can arise that involve children.

While ideally, all decisions and arrangements concerning children should be agreed by all people with parental responsibility, this isn’t always possible.

Issuing proceedings may not always be the answer to resolving these disputes. Alternative dispute resolution (ADR) options — such as mediation — should always be considered. If this isn’t appropriate, Children Act proceedings may need to be issued.

In England and Wales, the Children Act 1989 is the key legislation that governs proceedings concerning children. These proceedings are dealt with by the Family Court. Ultimately, when the Family Court considers any applications concerning a child, that child’s welfare will be the paramount consideration.

There are a number of proceedings that may be issued under the Children Act 1989, including applications for:

• child arrangement orders
• specific issue orders
• prohibited steps orders
• financial provision for a child (under Schedule 1 of the Act, see below).

If you have children with someone to whom you are not married, a Schedule 1 application may allow the family court to make financial provisions for your children.

Given the rise in cohabiting and unmarried couples having children, Schedule 1 applications are being used more frequently. These are most often used in cases where parents have not been married and have no right to financial support for themselves under the Matrimonial Causes Act 1973.

Our award-winning family law team has a wealth of experience in financial remedy proceedings following divorce, as well as Schedule 1 negotiations and applications.

There may be a significant difference between a Schedule 1 Children Act 1989 claim for a child and the claims that can be made by a parent for them and their child in the context of divorce. Any claims under Schedule 1 of the Children Act can only relate to the needs of children — not the needs of a parent.

Need legal advice to apply for, negotiate or defend a Schedule 1 claim? Talk to us.

A specific issue order enables the court to determine the outcome of a specific dispute that has arisen in connection with a child.

For example, this may be used to provide that a child should attend a certain school.

A child arrangement order is a legally binding agreement that sets out and governs who a child should live, spend time and have contact with.

Often, it will also deal with other issues relating to a child’s welfare.

In addition to child arrangement orders, Children Act proceedings may also be issued where parents disagree on more discrete disputes, which can range from where a child should attend school to what religion the child should practice and whether a child should be allowed to relocate to another country with one parent.

Generally, all significant decisions in a child’s life should be made by agreement between the people who hold parental responsibility (usually the child’s parents). Where parents can’t agree on a decision, they may need the court to make the decision for them — usually by way of either a specific issue order or a prohibited steps order.

Where an applicant seeks either a specific issue order or prohibited steps order (or both), the court process will be the same as the process followed in relation to applications for child arrangement orders. It should be noted that parents may apply for these orders in conjunction with an application for a child arrangements order.

When Children Act proceedings are issued, the court will typically list the matter for a First Hearing Dispute Resolution Appointment (FHDRA) and instruct the Children and Family Court Advisory and Support Service (CAFCASS) to prepare what is known as a safeguarding letter.

This FHDRA typically takes place after receipt of the safeguarding letter. This is a short hearing used to identify the issues in a dispute and determine if the court requires any further evidence to resolve them. This evidence may include statements from the parties involved, evidence from medical practitioners or the children’s school, or a further and more detailed report from CAFCASS (known as a Section 7 Report).

If the parties cannot resolve the dispute at the FHDRA, the court will either list the matter for a further interim hearing — known as a Dispute Resolution Appointment (DRA) — or list the matter for a final hearing. Typically, the court will order an interim DRA to take place where it feels that issues need to be narrowed or further court directions need to be made ahead of the final hearing.

At a final hearing, the court will consider all the available evidence before making an order. The child’s welfare will be the court’s paramount consideration throughout. The court will use the welfare checklist — provided for in Section 1 of the Children Act 1989 — when considering what order to make.

The welfare checklist provides for the court to consider the following factors:

• The ascertainable wishes and feelings 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 circumstances.
• The child’s age, sex, background and any other characteristics that the court considers to be relevant.
• Any harm that the child has suffered or is at risk of suffering.
• How capable each of the child’s parents — and any other related person to whom the court considers the question to be relevant — are of meeting the child’s needs.
• The range of powers available to the court under the Children Act 1989.

An order made by the court at a final hearing will be legally binding and enforceable.

A prohibited steps order prohibits a parent from taking a specific action or making a specific decision in relation to a child.

For example, this may be used to provide that a parent can’t take a child out of the jurisdiction to relocate abroad.

These orders may need to be made urgently, depending on the circumstances.

If you and your ex-partner are unable to amicably agree on the best course of action for your children, a child arrangement order may be appropriate.

As a legal agreement, such an order can be enforced to provide security, routine and reassurance to both parents/guardians and children, particularly following an acrimonious separation.

However, if you are on good terms with your ex-partner and can amicably agree on the best course of action for your children, you may not need a child arrangement order. Where possible and safe to do so, the court expects separated parents to try to resolve disagreements outside of the court system.

When considering a Schedule 1 application, the paramount consideration of the court is the best interests and welfare of your children. The court will require full financial disclosure from each parent so that it can evaluate their financial positions.

The court will consider the following factors when considering the appropriate level of financial provision for a child:

• The financial needs of the children.
• The financial circumstances of each parent, both now and in the future.
• The income, earning capacity (if any), property and other financial resources of the children.
•  Any physical or mental disability of the children.
• The manner in which the children are (or are expected to be) educated or trained.

The ‘no order as to costs’ rule doesn’t apply to Schedule 1 applications. This means that if you’re unsuccessful, you could be ordered to pay the other person’s costs.

A specialist family lawyer can advise you on the merits of you case and discuss whether it’s sensible and proportionate to make an application. Settlement offers, which include costs, may be made. This means that one person could be ordered to pay the other person’s legal costs.

Due to the cost implications of these types of application, it’s important to obtain specialist advice from a family law solicitor prior to pursuing an application under Schedule 1 of the Children Act 1989.

Children Act proceedings don’t solely relate to disputes surrounding arrangements or decisions made in respect of a child. They may also be instigated where one parent (or guardian) wishes to make an application to seek that the other parent provides financial provision for a child under Schedule 1 of the Children Act 1989.

Such applications shouldn’t generally be made in relation to child maintenance. Child maintenance is outside the Family Court’s jurisdiction and is dealt with by the Child Maintenance Service.

Applications to the court for financial provision for a child are typically applied for where financial support over and above typical child maintenance is sought, such as applications for property adjustment orders (made to provide housing for a child), to seek a lump sum to provide a car for the parent of a child or to order the payment of school fees.

Any applications for financial provision under Schedule 1 will need to be balanced against the resources of the parent from whom financial support is sought.

Those who can apply for an order for financial provision are:

• Parents.
• Guardians.
• Special guardians.
• Any person who is named in a Child Arrangement Order (CAO) as a person with whom a child is to live.
• A child over the age of 18 (in limited circumstances, such as if they’re still in full-time education or training, or if there are special needs or disabilities to consider).

The court can make the following range of financial orders:

• Periodical payments (otherwise known as maintenance or alimony).
• Secured periodical payments.
• Lump sum.
• Settlement of property.
• Transfer of property.

Periodical payments will usually end when the child turns 17 or 18, unless the child is (or will be) in education or undergoing training for a trade, vocation or profession.

Exceptions may also be made if there are special circumstances, such as a physical or other disability.

The court will always consider a child’s welfare and best interests over everything else.

In making a decision around a child arrangement order, the court will consider a variety of factors.

These include:

• the wishes and feelings of the child.
• the child’s emotional, physical and educational needs.
• age, sex, background and any other characteristics that the court considers to be relevant.
• whether the child is in danger of or has suffered any kind of abuse or neglect.
• the ability of the child’s parents or guardians to meet their needs.
• the effects on the child of any changes in circumstances as a result of the order.
• the range of powers available to the court under the Children Act 1989.

If a child arrangement order is in force and you’re named as a person that the child spends time or otherwise has contact with, you cannot take them abroad without the consent of the person with whom the child currently lives.

Without consent, you’ll need to make an application to the court — potentially on an urgent basis, if the holiday is imminent. While this consent shouldn’t be unreasonably withheld, it’s good practice to obtain confirmation in writing from the person that the child lives with before the holiday is booked.

If you’re named in a child arrangement order as a person that the child lives with, you can take your child on holiday abroad for up to 28 days without anyone else's consent.

You should, however, notify other relevant people named in the child arrangement order and provide details of the holiday as a matter of courtesy.

For longer periods of time, you’ll need the consent of each person who has parental responsibility for the child. If this isn’t forthcoming, you’ll need to apply for a specific issue order.

The most common type of child arrangement order governs and regulates where a child will live and how often they will see and spend time with another parent.

Applications can also be made to address issues regarding the upbringing of a child. For example, a ‘specific issue order’ is used to look at a specific question about how the child is being brought up — for instance, what school they attend, whether they should receive a religious education and whether they can be relocated from where they live.

A ‘prohibited steps order’ can also be applied for to stop another parent from unilaterally making a decision about a child’s upbringing.

Certain people are automatically entitled to make an application for a child arrangement order.

This includes:

• the parent, guardian or special guardian of a child.
• any person who has parental responsibility for a child.
• anyone who holds a ‘lives with’ order (previously known as a residence order) in respect of a child.
• any party to a marriage or civil partnership where the child is a child of the family (even if they are not a biological child).
• anyone with whom the child has lived for at least three years.
• anyone who has obtained the consent of:
  • the local authority (if a child is in their care)
  • anyone who has parental responsibility for a child.

Anyone else who wants to seek an order can only do so if they apply to the court for permission first. It is usually via this route that wider family members (such as grandparents) are able to apply for orders in respect of their grandchildren.

If your ex-partner has made an application to the court and you have parental responsibility for the child, you should be a respondent and will automatically be given the right to respond.

If your ex-partner has voiced a wish to relocate and you have concerns that they may take steps to implement a move without your consent, you may need to make an application to prevent a move.

The necessity and urgency of this would need to be considered. If a move has already been implemented within the UK, the parent who didn’t give permission may apply to the court for the child to be returned.

The nature of this application would depend on the location of the child and whether they remained in England and Wales. An order may be granted for the return of the child if the court considers that this is in their best interests.

If a child has been removed abroad, different provisions and procedures are in place.

A child relocation application constitutes a specific issue order pursuant to s8 of the Children Act 1989.

This requires completion of a form C100. Once completed, the form should then be filed at your local family court and will subsequently be served upon the respondent(s).

If you have any safety or welfare concerns, it may also be necessary to complete a C1A to submit details to the court. Whether this is appropriate in your case will often require careful consideration.

We recommend that you seek advice from a specialist solicitor to assist you during this process.

Previously, you could apply for a residence order to enable a child to live with you and a contact order to enable contact with a child.

These are now both referred to as child arrangement orders, which cover who the child should live with and what contact should they have.

If you have an old residence or contact order, this will remain unchanged and you don’t need to re-apply to the court.

A child arrangement order typically lasts until a child is 16 years of age. This can be increased to 18 in exceptional circumstances.

If you move back in with your ex-partner, the child arrangement order will cease after six months of cohabitation.

There is no real procedural distinction in terms of an application between a proposed relocation within England and Wales, the UK or internationally. However, the consequences of relocating a child without the consent of the other parent or a court order are different.

If a parent has relocated a child to another country without permission, this is classed as child abduction. This is a criminal offence.

Where a child arrangement order is in place that specifies where the child should live, there is an automatic prohibition on taking the child out of the UK for more than a month without the written consent of everyone with parental responsibility.

There are specific provisions and procedures that should be followed to seek the return of a child who has been abducted to another country. These will depend on the country the child has been removed to.

If the court made an order granting the relocation or failed to grant an order to prevent the child from being relocated or for the child to be returned, you can ask the court to make a new order. This would generally be considered by the court as part of any relocation application.

A child arrangement order can specify the time a child should spend with you and whether this contact should take place in this country or overseas.

It’s important to note that ‘contact’ or ‘spends time with’ means more than face-to-face contact. It can also include cards, letters, gifts, phone calls, video calls and more — so the type of contact required and who is responsible for facilitating it should be set out specifically in the order to avoid any misunderstanding and try to ensure that this takes place without issue.