Posted by The Family Law Company on 19th December 2011

The court’s aim is to assist parents to safeguard their children’s welfare and there are a number of orders that a court can make that are of importance to fathers:

The last four are collectively known as s8 orders and they should only be sought if they will be of positive benefit to the child.

Shared Residence Order

A shared residence order refers to a family arrangement following divorce or separation where both parents share responsibility for their child’s upbringing. The order will specify the period of time that the child will spend with each parent, but it does not necessarily mean that the child will spend exactly equal time with each parent. Child maintenance payments are reduced for each night of the week that the child stays with the non-resident parent.

How Common is a Shared Residence Order?

In the past, shared residence orders would only be made in exceptional cases but shared residence orders are now made more frequently than ever before. The court will not automatically make a shared residence order because each family’s circumstances will be different, and it is their responsibility to make a decision that reflects the best interests of each individual child.

When applying for shared residence, fathers should ask the court to make an interim residence order which states which parent the child should live with until the court makes the final decision – and maintain the status quo if possible.

Residence Order

A Residence Order states where a child is to live. Irrespective of the decision, both parents still have joint responsibility (if the other parent has Parental Responsibility) in relation to the child’s upbringing.

If you are applying for a residence order, you need to show it is in the child’s best interest to live with you. You will need to think very carefully about their physical needs and daily routines.

Before making a ‘residence order’ the court will consider the welfare principle, welfare checklist, and the ‘no-order’ principle: as well as what is in the child’s best interests. Family courts also have a principle called “presumption of contact,” under which they have to do everything possible for fathers to see their children.

How Residence is Determined

The court considers the following circumstances in deciding with whom/where the child will live:

It is possible to grant a residence order to more than one individual (in the case of shared parenting for example).

A residence order also provides Parental Responsibility to the holder of the order for the lifetime of the order, usually until the child turns 16 years of age unless there are exceptional circumstances. For example if an unmarried father without parental responsibility is granted a residence order, the court will also have to grant him an order for parental responsibility.

Parental Responsibility

In England and Wales parental responsibility for a child is defined in the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child and his property”.

Having parental responsibility for a child enables a parent to make day-to-day decisions in respect of their child and the right to be consulted, about matters such as education, religion and medical treatment. Any parent with parental responsibility can also, for example, object to any change of a child’s name.

Who has parental responsibility?

When a child is born the mother automatically has parental responsibility. The father does also but only if he was married to the mother at the time of the child’s birth or subsequently marries the mother. If the father is unmarried, he automatically has parental responsibility for the child if the child’s birth is registered after the 1 December 2003 and the father’s name is on the child’s birth certificate.

Will you lose parental responsibility if you get divorced?

No – you do not lose parental responsibility if you get divorced; you will carry on being the child’s full legal father whether or not the child lives with you.

Unmarried Fathers

If your child’s birth is registered before the 1 December 2003, you do not have parental responsibility, even if you are named on the birth certificate as the father. In fact unmarried fathers have no legal rights or status whatsoever, other than a duty to pay the Child Support Agency following an assessment of means.

It is recommended that unmarried fathers acquire parental responsibility giving them the same rights in the decision making process relating to bringing up the child as enjoyed by married fathers.

This can be obtained in the following ways:

Prohibited Steps Order

A Prohibited Steps Order prevents the other parent from doing something without the consent of the court, for example you would apply for this order to prevent the mother from abducting your child by removing your child from England and Wales.

A prohibited steps order requires that the prohibited areas must be specified in the order, and it can be made on its own or alongside a residence or contact order. It can only relate to parental responsibility matters and could be used to:

Specific Issue Order

A Specific Issue Order is an order where the court will consider a specific question that has arisen in connection with the exercising of parental responsibility.

As a father, you may apply for this order if you disagree with the decision that your ex partner has made in relation to a specific issue involving your children, for example:

Family Assistance Order

The Family Assistance Order (FAO) was introduced by the Children Act 1989 as a means of providing support to families experiencing difficulties after separation or divorce.

The order is usually made where parents are having difficulty reaching agreement over arrangements for their children and a Judge invites a CAFCASS officer to advise, assist and befriend the parties, working with them and the children to reach an agreement over a 3-6 month period.

“… aimed at giving essentially short-term help to parents or spouses to cope with the immediate problems arising from their separation or divorce, to smooth the transition for them and their children, to promote arrangements for access where these are in dispute, and generally to facilitate co-operation between them in the future.”

FAO’s are still relatively rare and may be made only in exceptional circumstances and with the agreement of both parties.

 

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