INFORMATION SHEET – CHILDREN

1.         Thank you for instructing Massers at this difficult time.  We hope that we can offer you the support and advice that you require.  We recognise that as this is a difficult time it can be very easy to forget  or become confused about the advice that has been given to you.  It is for this reason that we hope this document will help you and provide you with a source of reference and indeed as a source for us to refer you to from time to time.

2.         Please bear in mind that for us to help you efficiently that we rely on you to provide information as requested to contact us promptly if there are problems and to deal promptly if possible with answering our letters.  It is important that you keep us fully informed of any changes that there may be in your personal circumstances including for example living with a new partner or a change in your employment situation.

3.         We feel that you may find it useful at this time to have some of the general principles used and applied in relation to matters concerning the children explained briefly to you and below are set out a few of the more common principles used:

i)         You should always remember that even though you may be divorcing or separating from your partner that this does not mean y ou should consider yourself as separating or divorcing from the children.

ii)        The Children Act 1989 made various changes in relation to the Law in relating to children.  It is important that you understand that the concepts of custody and access now no longer exists.

iii)       The courts now take the view that they should not intervene and make court orders relating to children where the parents of children are able to agree between themselves what the arrangements for their children should be.  This is known as the policy of Non-Intervention.

iv)        The Children Act 1989 introduced a concept called Parental Responsibility which is defined as being the rights, duties, powers, responsibilities and authority which a parent has in relation to a child and a child’s property.  Parental Responsibility may be held by more than one person for any one child.  Parental Responsibility will include therefore matters such as deciding where a child shall live, whom a child shall see, where a child shall attend school, to what a child shall eat and what a child shall wear, indeed all matters common sense says parents decide for their children.  It should be borne in mind of course that this is not an exhaustive list of those matters that can be encompassed within the definition of Parental Responsibility.

v)         Where the parents of children are married to each other both parents have Parental Responsibility automatically and would continue to have that responsibility even say after a decree absolute of divorce has been granted.

vi)        If a child’s parents are not married to each other and the child was born before 1st December 2003 only the mother has Parental Responsibility automatically.  The child’s natural father can obtain Parental Responsibility in one of three ways, firstly by marriage to the child’s mother, secondly by entering into a Parental Responsibility Agreement with the mother granting Parental Responsibility to the father or finally by way of a court order.

vii)      It is possible for somebody who is not a natural parent of a child to obtain Parental Responsibility by way of a court order.  This order may be a Parental Responsibility Order or a Residence Order (see below).

viii)     A Residence Order is an order in which the court decide with whom children should be residing at any particular time.

If a Residence Order is in force no person may remove the child from the jurisdiction of the court namely England and Wales without either the written consent of every person who has Parental Responsibility or an order of the court.  It should be noted that the main exception to this is in relation to the person in whose favour a Residence Order has been made.  Such a person may remove a child from the jurisdiction of the court for a period not exceeding four weeks.

ix)       A Contact Order is an order within which the court decide the basis upon which a parent or a third party should have contact with a child.  Contact is now a much broader concept than the old concept of access used to be.  It may include contact on a one to one basis or for example contact by telephone, letter or gift.

x)         A specific Issue Order is an order in which the court will decide a specific issue relating to the exercise of Parental Responsibility in respect of a child.  This will cover things such as where a child should be educated or whether or not a child should receive medical treatment.

xi)       A Prohibited Steps Order is an order within which the court will decide whether a person in exercising their Parental Responsibility should be prohibited from taking a particular step.  This for example may include an order that prevents a child being removed temporarily from the jurisdiction of the court namely from England and Wales or to prevent the child associating with particular named persons.

xii)      It should be noted that a person in exercising their Parental Responsibility is under no duty in law to consult with any other person who has Parental Responsibility in relation to a child as to the way in which that responsibility is exercised.  However it must be borne in mind that common sense says it is in the interests of the child and of all persons with Parental Responsibility that any major decision to be taken concerning the child’s welfare and well being should properly be discussed with all persons who have Parental Responsibility.  In so doing hopefully unnecessary problems and or applications to the court can be avoided.

4.         Please always remember to contact the office promptly when asked to do so.  If whoever is not available a message may always be left with his or her secretary or at reception.  Please read carefully all letters that you receive from us and of course if you receive any correspondence from your partner’s solicitors please pass this on to us straight away.

5.            Finally, remember to keep this document handy for future reference and bear in mind that for us to help you efficiently you in turn have to help us by providing information requested and prompt replies to correspondence.