Parental Responsibility and Relationship with the Child

WHAT IS A PARENTAL RESPONSIBILITY (“PR”)?

PR is defined as "all the rights, duties, powers, responsibilities and authority that a parent of a child has in relation to the child and his property by law"

In practical terms, this means that those with PR are able to make decisions about the child's property and welfare (including but not limited to religious upbringing, accommodation, education and medical treatment). Problems can occur when there are two people with parental responsibility and they disagree about some of these issues.

Every day decisions such as the activities a child undertakes, how a child spends their time, and routine medical check-ups can be carried out by one person with parental responsibility.

Other decisions can be taken by one person with PR but they must let the others with PR know. For example: medical treatment in an emergency; planned visits to a general or nurse practitioner and the reasons for this; changes of address within the local area that do not disrupt contact arrangements nor require a change of school; changes in living arrangements, including any change to the mix of people who are or will be living in the same household.

However, some decisions have to be made in consultation with all holders of PR. What are the decisions that have to be made in consultation with all holders of PR? There is no complete list of the decisions that have to be made in consultation with all holders of PR but some examples are:

  • Deciding on the school that the child will attend, including making school admission applications

  • Applications for authorized absence from school and reasons for this

  • Planned medical and dental treatment beyond routine check-ups

  • Deciding on the child's religious upbringing

  • Circumcision

  • Immunization

  • Stopping prescribed medication for the child

  • Change of the child's surname

  • Relocation to another part of England and Wales or overseas.

What can a babysitter do without your consent in case of emergency? A person who does not have PR but who has care of a child can do what is reasonable in any circumstances to safeguard or promote the child's welfare. For example, this allows a babysitter to deal with a medical emergency.

WHO HAS PARENTAL RESPONSIBILITY?

A child's mother will always have Parental Responsibility for her child.

If a child's parents are married when he is born, both of them automatically have PR.

If the parents are not married when the child is born, only the mother automatically has PR. The father can acquire PR if he:

  • Marries the mother and he lives mainly in England and Wales when the marriage takes place;

  • Enters into a Parental Responsibility agreement with the mother and files it at the Principal Registry of the Family Division of the High Court (PRFD). To apply for a Parental Responsibility Agreement between a mother and father you can fill out this Form C PRA(1): https://formfinder.hmctsformfinder.justice.gov.uk/c(pra1)-eng.pdf

  • Obtains a court order giving him PR;

  • Is named in a Child Arrangements Order (‘CAO’) as a person with whom the child is to live. When the court makes a CAO naming the father as a person with whom the child lives, it must also make a PR order.

  • Is named in a CAO as a person the child should spend time or otherwise have contact with and the court decides that it would be appropriate to make a PR order in his favour.

  • Is registered as the child's father on a register of births in the UK. This requires the mother's consent and applies only if the child was born on or after 1 December 2003.

  • Becomes the child's guardian.

  • Adopts the child.

Can a child have two female parents and who will have the PR in such case? Where a child is born by fertility treatment given on or after 6 April 2009, that child may have two female parents under provisions in the Human Fertilisation and Embryology Act 2008 (HFEA 2008).

The woman who carried the child is treated as his mother and has PR in the same way as any other mother (section 33, HFEA 2008 and section 2(2A), CA 1989).

A second female parent is treated in a similar way to a father. She has PR automatically if she is a second female parent under section 42 of HFEA 2008, which applies if she was the mother's same-sex spouse or civil partner at the time of the fertility treatment and consented to the treatment (section 2(1A) (a), CA 1989).

If she is a second female parent in an unmarried couple, she can acquire PR in the same way as an unmarried father (see above). This applies if she was not the mother's same-sex spouse or civil partner at the time of the treatment, but at that time the two women consented in writing to her being the child's second parent and the mother was neither married nor in a civil partnership with another individual who is treated as the second parent.

How can a step-parent acquire PR? A step-parent can acquire PR for a child if he is married to, or is the civil partner of, a parent of the child who has PR, and he does either of the following:

A step-parent can also obtain PR if they are named as either of the following in a Child Arrangements Order (‘CAO’):

  • A person the child will live with. The court will automatically make a PR order in favour of the step-parent, which will endure for as long as the CAO remains in force.

  • A person with whom the child will spend time or otherwise have contact but does not live with. In these circumstances, the court may provide for the step-parent to have PR in the order but this will not automatically be granted. If granted, PR will endure for so long as the step-parent is so named in the CAO.

DISAGREEMENT BETWEEN THOSE WITH PR

Where an important decision has to be made and you and the other person with PR cannot agree, you will have to make an application to court for an Order to settle the dispute.

If you are asking the court to make an order to enforce your decision, for example, that your child attend your preferred school, then you must apply for a specific issue order.

If you are asking the court to prevent the other person with PR from taking action that you do not agree with (for example, if they intend to change the child’s name and you do not consent) you will need to apply for a prohibited steps order.

Note that the court cannot make either of these orders if the child is aged 16 or over except in exceptional circumstances.

If you need to make a court application in case of disagreement on an important decision regarding my child with the other person with PR, before you can issue proceedings, you must attend what is known as a Mediation Information and Assessment Meeting (“MIAM”). This is a meeting with a specially qualified family mediator, who will explain to you the alternatives to the court process. The purpose of the meeting is to give you an opportunity to find out whether going to court would really be the best way of dealing with the issues that you face following your relationship or marriage breakdown (e.g. children, property and financial issues), and in particular whether mediation could be an effective alternative.

There are exemptions in specific circumstances – if there is evidence of domestic violence or a risk of serious harm to children the family will not have to attend a meeting.

Once you have been to a MIAM, if you wish to continue with your court application, you can fill out Form C100, which you can find here:

http://formfinder.hmctsformfinder.justice.gov.uk/c100-eng.pdf

You must also fill out Form C1A where it is alleged that the child has suffered or is at risk of suffering from domestic abuse or violence. You can find that form here:

https://formfinder.hmctsformfinder.justice.gov.uk/c1a-eng.pdf

The next step is to send three copies of the form(s) plus a court fee (currently £215) to court. To find out which court you should go to:

https://courttribunalfinder.service.gov.uk/search/spoe?aol=Children

The fee is usually paid by cheque, made payable to "HMCTS" or "HM Courts and Tribunal Service".

The court will schedule the First Hearing and Dispute Resolution Appointment, known as the FHDRA, which is a 30-minute hearing, at the same time that it issues the application. The court sends the application and notice of this hearing to the other party, at least 14 days before the date of the FHDRA.

The purpose of the FHDRA is to pinpoint the issues in dispute and try to resolve them as quickly and inexpensively as possible.

All parties must attend the FHDRA. A court welfare officer (also known as a Children and Family Court Advisory and Support Service (CAFCASS) officer) will attend as well. CAFCASS is an organisation responsible for safeguarding the interests of children involved in court proceedings. CAFCASS work with children and families and the CAFCASS officer advises the court on what they consider to be in the child's best interests. Depending on arrangements in your local family court, a court appointed mediator may also attend the FHDRA to assist you and your former partner to resolve the dispute. Mediation is a voluntary process and both you and your former partner must agree to involve the mediator.

At the FHDRA, the CAFCASS officer and the judge will try to help the parties agree to a solution. Problems will be discussed openly and solutions suggested. If an agreement can be reached about all or part of the dispute, the court can make an order recording the agreement.

If agreement cannot be reached, the court will identify the remaining disputed issues. The court will also identify what evidence will be required to help another judge on another day to reach a decision about the disputed matters.

At the end of a FHDRA where the dispute has not been fully resolved, the court will often order parties to prepare statements and other evidence that support their case.

To help it decide the application, CAFCASS might be ordered to prepare a report on specific issues and the best way to resolve them. This can involve a CAFCASS officer visiting the parties' homes, meeting and speaking to them and other significant adults (such as the child's teachers) and the child on one or more occasions.

At the end of the FHDRA, depending on the issues for resolution, the court will either schedule a dispute resolution appointment or a final hearing.

A Dispute Resolution Appointment (DRA) is usually scheduled if CAFCASS have been asked to produce a report to help the court decide how to settle the dispute. At the DRA the court will first identify how far the dispute can be narrowed or resolved at that hearing. The court will resolve or try to narrow the issues in dispute by hearing evidence from the parties. If an agreement is reached, the court will make an order reflecting that agreement.

If no final agreement is reached at the DRA the court will order the parties to file any further evidence and schedule a final hearing. For example, if CAFCASS have filed a report both parties will have the chance to file further statements and evidence responding to the recommendations contained in the CAFCASS report.

Once all relevant evidence has been prepared and submitted to the court, a final hearing will be held when a judge will consider all of the evidence and make a decision about the issues in dispute.

In the small number of cases that proceed to a final hearing, the court will hear oral evidence from the parties and sometimes from other witnesses. If a CAFCASS report has been prepared, the officer who prepared it might be asked to attend court to give evidence if necessary. Anyone who gives evidence will be asked questions about their written evidence by their own legal representative, the other parties legal representatives and sometimes by the judge.

After hearing the evidence and listening to the legal argument, the judge will make an order deciding the issues in dispute.

APPOINTING A GUARDIAN FOR THE CHILD IN THE EVENT OF YOUR DEATH

A person with parental responsibility can appoint another individual to be the child's guardian in the event of his or her death by writing it in his or her Will.

If the person appointing a guardian by Will dies and the child concerned has no parents with parental responsibility upon or immediately before the death of the person making the appointment, or if there was a Child Arrangements Order (‘CAO’) in force allowing the child to live with them, then the guardian appointment will take effect automatically on the death of that person.

However, if the child has a parent with parental responsibility, the appointment will not take effect until child no longer has a parent who has parental responsibility for them.

This means that, if a mother is concerned about a divorced father's ability to care for the children on her death, she might wish to nominate a guardian of the children in her Will. Unless she has in her favour a Child Arrangements Order specifying that the child lives with her, that guardian's appointment will not be made until the father himself also dies. If the father also appointed a guardian in his own Will, then those two guardians would share the rights and responsibilities and/or negotiate how matters are to be dealt with. If necessary they can do this through the courts.

If the mother does have a CAO in her favour at the time of her death, then the appointment of the guardian will happen upon her death and the guardian will therefore have parental responsibility at the same time as the father.

PARENTING AGREEMENTS AFTER SEPARATION

A Parenting Agreement is a written plan worked out between parents after they separate and it covers the practical issues of parenting.

  • It can help clarify the arrangements you need to put in place to care for your children after separation, without having to go to court. It can help you in dealings with your children's other parent or carer, and it asks parents to put the best interests of their child first. There are many benefits of making a Parenting Agreement;

  • it will help everyone involved know what is expected of them;

  • it acts as a valuable reference to go back to; and

  • it sets out practical decisions about the children, such as living arrangements, education and health care.

The 'Splitting Up? Put Kids First' website contains an interactive program designed to help you come up with an agreement:

http://www.splittingup-putkidsfirst.org.uk/home#getStarted

CAFCASS also has a series of questions designed to help you discuss the issues and reach an agreement:

https://www.cafcass.gov.uk/grown-ups/parents-and-carers/divorce-and-separation/parenting-plan/

The Centre for Separated Families also has an example parenting agreement you can download:

https://www.separatedfamilies.info/home/parenting-apart/parenting-agreements/

What other resources exist to help you parent after separation? The Separated Parents Information Programme, which is run by CAFCASS is a great course to help you move forward as separated parents. Anyone can do this short course, which involves group work with other parents. It helps you to think about your child’s point of view, learn from other parents, find out about sources of help, and think about what you can do to improve your situation:

https://www.cafcass.gov.uk/grown-ups/parents-and-carers/divorce-and-separation/separated-parents-information-programme/

Getting it Right for Children is an online skills development programme designed specifically to help parents communicate better. It is a straightforward, practical programme that can help you communicate better with your ex-partner and find solutions about childcare issues as they arise:

https://theparentconnection.org.uk/programmes/programmes/getting-it-right-for-children-when-parents-part

What to do if you cannot agree how your child should spend their time? If you can’t agree how your child or children should spend their time there are options open to you. One, often very effective, option is mediation.

Mediation is an increasingly popular and efficient way to resolve disputes.

An independent, impartial and professionally qualified mediator will assist you and your spouse or partner in resolving issues. This may take a number of sessions. Mediation can take place alongside court proceedings, or before.

The courts are keen for people to settle their issues by mediation. In fact, according to the rules of court, before you can start court proceedings you must first attend a meeting with a mediator who will explain mediation and its potential benefits if you have not already had mediation or another form of out-of-court dispute resolution. The mediator is chosen by agreement and his or her fees are paid by the parties, often in equal shares.

Follow this link to explore a list of mediators and read more about the process:

http://thefma.co.uk/

If you cannot agree after mediation, or you are not able to mediate with your ex-partner, then you will have to apply for a Child Arrangements Order.

CHILD ARRANGEMENTS ORDERS (CAO)

Child Arrangements Orders (‘CAO’) regulate child’s living arrangements, i.e. who a child

will live with, spend time with or otherwise have contact with and when.

For example, if you and your partner have separated and you want your child to live with you, but cannot agree on this, then you will need to apply to the court for a CAO regulating your child's living arrangements.

If you have agreed that your child will live with one parent but cannot agree the amount of time that your child will spend with the non-resident parent, you will need to apply to the court for a CAO regulating contact arrangements.

A CAO regulating contact arrangements requires the person with whom the child lives to allow the child to visit or stay with the person named in the order, or for that person and the child to otherwise have contact with each other. The order will set out when the child is to spend time or otherwise have contact with the person named in the order.

The court may decide to regulate a child's living arrangements by making any of the following CAO:

  • Naming one person with whom the child is to live.

  • Naming two people who live in the same household together, as persons with whom the child is to live. These CAO are usually made in favour of a child's parent and step-parent.

  • Naming two persons who live in different households, as persons with whom the child is to live. The CAO will set out the time that the child will live in each household. This allows a child to live with both parents in their respective households following separation. The division of the child's time between each household doesn’t have to be equal.

TYPES OF CHILD ARRANGEMENTS ORDERS

If you and your former partner cannot agree on when your child should spend time , or the level or frequency of contact arrangements, or if the parent with whom the child lives (that is, the resident parent) is unreasonably preventing contact from taking place, you will have to apply to the court for a Child Arrangements Order (‘CAO’) to settle these arrangements.

The court may order any of the following types of contact to take place under a CAO:

  • Direct and indirect contact arrangements:

With a direct contact arrangement, the child will have contact with a named person by staying with or visiting them. An indirect contact arrangement is one where the contact takes place by letter, e-mail, voice over internet protocol (VOIP) (such as Skype), instant message or telephone. Indirect contact arrangements are ordered by the court if it is not appropriate for the child to see the person directly (for example, where there is a potential risk to the child's wellbeing that cannot be managed otherwise).

  • Overnight and visiting contact arrangements:

Direct contact arrangements can involve the child visiting the person named in a CAO for a few hours or staying with them overnight. Visiting contact arrangements are usually ordered where the application concerns a baby or young child. In these cases, the court may order shorter but more frequent periods of contact. If the application involves an older child, who is more able to care for themselves, overnight contact arrangements are more likely to be ordered.

Contact arrangements can also be phased in gradually. For example, if the child has spent no time with the non-resident parent, contact arrangements may begin as indirect arrangements by letter or email to reintroduce the child to the absent parent. This will then progress to visiting contact for a few hours. Contact arrangements can gradually be extended to longer periods of time, ultimately leading to overnight stays.

  • Supervised and unsupervised contact arrangements:

If the court thinks there is a risk to the child's welfare through direct or indirect contact arrangements, it can order contact arrangements to be supervised by a third party. For example, if direct contact arrangements are ordered, this can be supervised by the court. They can order that contact between the child and the person named in the CAO takes place at a contact centre, where staff can supervise, support or monitor the meeting to ensure the child's safety and well-being. If there are no welfare concerns, contact arrangements will be unsupervised.

END OF CHILD ARRANGEMENTS ORDERS

Child Arrangements Orders (‘CAO’) regulating who a child will spend time with or otherwise have contact and when continue until the child is 16 years old, or 18 years old in exceptional circumstances. The court can also set out the duration in the order.

CAO regulating with whom the child is to live and when continue until the child is 18 years old.

CAO end automatically if a child's parents live together for a continuous period of more than six months after the order has been made.

NO NEED TO OBTAIN A CHILD ARRANGEMENT ORDER IN THE PRESENCE OF AN AGREEMENT

Should I apply for a Child Arrangement Order (‘CAO’) if I agree with my former partner on where and with whom our child will live, whether contact should occur with the non-resident parent and the level of contact?

You need not apply to the court for a CAO if, following the breakdown of your relationship, you and your former partner can agree on where and with whom your child will live, whether contact should occur with the non-resident parent and the level of contact. A court order is only necessary if you and your former partner cannot agree on these issues.

COURT PROCEDURE TO OBTAIN A CHILD ARRANGEMENT ORDER

How can you make a court application for a Child Arrangements Order (‘CAO’) if you disagree with your former partner on where and with whom your child will live, whether contact should occur with the non-resident parent or the level of contact?

Before you can issue proceedings, you must attend what is known as a Mediation Information and Assessment Meeting (“MIAM”).

This is a meeting with a specially qualified family mediator, who will explain to you the alternatives to the court process. The purpose of the meeting is to give you an opportunity to find out whether going to court would really be the best way of dealing with the issues that you face following your relationship or marriage breakdown (e.g. children, property and financial issues), and in particular whether mediation could be an effective alternative.

There are exemptions in specific circumstances – if there is evidence of domestic violence or a risk of serious harm to children the family will not have to attend a meeting.

Once you have been to a MIAM, if you wish to continue with your court application, you can fill out Form C100, which you can find here:

http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=2253

You must also fill out Form C1A where it is alleged that the child has suffered or is at risk of suffering from domestic abuse or violence. You can find that form here:

https://formfinder.hmctsformfinder.justice.gov.uk/c1a-eng.pdf

The next step is to send three copies of the form(s) plus a court fee (currently £215) to court. To find out which court you should go to:

https://courttribunalfinder.service.gov.uk/search/spoe?aol=Children

The fee is usually paid by cheque, made payable to "HMCTS" or "HM Courts and Tribunal Service".

The court will schedule the First Hearing and Dispute Resolution Appointment, known as the FHDRA, which is a 30-minute hearing, at the same time that it issues the application. The court sends the application and notice of this hearing to the other party, at least 14 days before the date of the FHDRA.

The purpose of the FHDRA is to pinpoint the issues in dispute and try to resolve them as quickly and inexpensively as possible.

All parties must attend the FHDRA. A court welfare officer (also known as a Children and Family Court Advisory and Support Service (CAFCASS) officer) will attend as well. CAFCASS is an organization responsible for safeguarding the interests of children involved in court proceedings. CAFCASS work with children and families and the CAFCASS officer advises the court on what they consider to be in the child's best interests. Depending on arrangements in your local family court, a court appointed mediator may also attend the FHDRA to assist you and your former partner to resolve the dispute. Mediation is a voluntary process and both you and your former partner must agree to involve the mediator.

At the FHDRA, the CAFCASS officer and the judge will try to help the parties agree to a solution. Problems will be discussed openly and solutions suggested. If an agreement can be reached about all or part of the dispute, the court can make an order recording the agreement.

If agreement cannot be reached, the court will identify the remaining disputed issues. The court will also identify what evidence will be required to help another judge on another day to reach a decision about the disputed matters.

At the end of a FHDRA where the dispute has not been fully resolved, the court will often order parties to prepare statements and other evidence that support their case.

To help it decide the application, CAFCASS might be ordered to prepare a report on specific issues and the best way to resolve them. This can involve a CAFCASS officer visiting the parties' homes, meeting and speaking to them and other significant adults (such as the child's teachers) and the child on one or more occasions.

At the end of the FHDRA, depending on the issues for resolution, the court will either schedule a dispute resolution appointment or a final hearing.

A Dispute Resolution Appointment (DRA) is usually scheduled if CAFCASS have been asked to produce a report to help the court decide how to settle the dispute. At the DRA the court will first identify how far the dispute can be narrowed or resolved at that hearing. The court will resolve or try to narrow the issues in dispute by hearing evidence from the parties. If an agreement is reached, the court will make an order reflecting that agreement.

If no final agreement is reached at the DRA the court will order the parties to file any further evidence and schedule a final hearing. For example, if CAFCASS have filed a report both parties will have the chance to file further statements and evidence responding to the recommendations contained in the CAFCASS report.

Once all relevant evidence has been prepared and submitted to the court, a final hearing will be held when a judge will consider all of the evidence and make a decision about the issues in dispute.

In the small number of cases that proceed to a final hearing, the court will hear oral evidence from the parties and sometimes from other witnesses. If a CAFCASS report has been prepared, the officer who prepared it might be asked to attend court to give evidence if necessary. Anyone who gives evidence will be asked questions about their written evidence by their own legal representative, the other parties legal representatives and sometimes by the judge.

After hearing the evidence and listening to the legal argument, the judge will make an order deciding the issues in dispute.

INTERNATIONAL SITUATIONS

The court can only make a Child Arrangements Order when it has jurisdiction to do so. The main basis for jurisdiction is that the child is habitually resident in England and Wales.

What does habitual residence mean? There is no single definition, but the following can be understood from previous cases:

  1. Habitual residence is a question of fact.
  2. A child is habitually resident in the place in which he or she is integrated in a social and family environment.
  3. The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. This means it is necessary to understand how integrated the family is in the environment of the country concerned.

When a child gains a new habitual residence, he loses his old one. As the child puts down those first roots which represent the requisite degree of integration in the environment of the new country, up will come the child's roots in that of the old country to the point at which he achieves the requisite disengagement from it.

What are the benefits of being named as a person a child will live with in a child arrangements order? Being named as a person with whom a child is to live in a Child

Arrangements Order (‘CAO’), means that you have the right to take the child abroad for up to one month without the consent of the other parent or the permission of the court.

A parent who is not named as the person with whom the child lives in a CAO does not have this right. However, if they do not have an agreement with the other parent, they can apply to the court for a specific issue order to take the child abroad. If the person named in a CAO as the person with whom the child lives wants to take the child abroad for longer than one month, they would have to apply for a specific issue order in the same way.

PERMISSION FOR YOUR CHILD TO LEAVE THE COUNTRY AFTER SEPARATON

If your child lives with you with the support of a Child Arrangements Order, you do not need permission to take the child abroad for less than one month.

If you have a Special Guardianship Order in your favour, you do not need permission to take the child abroad for up to three months.

In all other circumstances, if the other parent has parental responsibility, you need either their consent or the consent of the court to remove the child from the jurisdiction. Removal without consent is likely to constitute an abduction which is a criminal offence (see below).

You should therefore try to reach an agreement with your former partner about your plans. Mediation is an increasingly popular and efficient way to resolve disputes.

An independent, impartial and professionally qualified mediator will assist you and your spouse or partner in resolving issues. This may take a number of sessions. Mediation can take place alongside court proceedings, or before.

The courts are keen for people to settle their issues by mediation. In fact, according to the rules of court, before you can start court proceedings you must first attend a meeting with a mediator who will explain mediation and its potential benefits if you have not already had mediation or another form of out-of-court dispute resolution. The mediator is chosen by agreement and his or her fees are paid by the parties, often in equal shares.

Follow this link to explore a list of mediators and read more about the process:

http://thefma.co.uk/

If the other person with parental responsibility will not consent, you will need to apply to the court for a specific issue order.

If the other person with parental responsibility will not consent to your travelling with your child outside of England and Wales, how will the court decide whether to grant your request?

The child's welfare is the court's first consideration. The court will analyse your proposals for the move. The court will also analyse the other parent's proposals for what should happen if you are not given permission to relocate. It will weigh one against the other in order to determine which is in the child's best interests.

In doing so the Court will focus on the items listed in the "welfare checklist". This includes:

  • The child's physical, emotional and educational needs. This would include any special educational needs that the child might have. You will have to show the court that you have considered schooling; that you have been to look at schools, and have obtained a place at a suitable school. In terms of the child's emotional needs, you would have to make proposals to lessen the impact on the child of the reduction in time that she will spend with the other parent. This could include regular staying contact during school holidays, and plenty of skype/messaging contact.

  • The likely effect on the child of any change in their circumstances. The court will consider the impact a new environment might have on the child. This might include a new language. Is it a location familiar to the child? Do they have relatives there? Again, the change in the amount of time the child spends with the other parent is relevant here.

  • The child's wishes and feelings (considered in the light of his age and understanding). In all relocation cases the court will order a report by a social worker – either court appointed through CAFCASS or privately appointed – who will report to the court on the child's wishes and feelings. Of course, the weight that the child's wishes and feelings will have depend on the circumstances. Age is a big part of that, but the court will also consider how mature the child is and the situation that the child is in. There are some cases where the wishes and feelings of teenagers are given very significant weight indeed. However, this is not the position in absolutely every case.
  • Their age, sex, background and any characteristics of his which the court considers relevant. This may include the issue of siblings. In many cases, the court will try to prevent the separation of a sibling group.

  • Any harm which they have suffered or are at risk of suffering. Will the child suffer emotional harm if the primary carer is unhappy? But at the same time will it cause her harm if she moves and therefore sees the other parent far less often?

  • How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs. Is the primary carer meeting their needs? How capable is the other parent of meeting those needs?

Each case is decided on its own facts, and there is no presumption in favour of one parent or the other.

THE OFFENSE OF ABDUCTION

If your child lives with you, supported by a Child Arrangements Order, you do not need permission to take the child abroad for less than one month. If you take your child abroad for longer than this without the consent of other(s) with parental responsibility, this is likely to be considered an abduction.

If you do not have a Child Arrangements Order which provides that your child lives with you, then any removal or retention (for example at the end of an agreed holiday) across an international border without consent of the other holders of parental responsibility or without permission from the court is likely to be considered an abduction.

Abduction is a criminal offence. The Child Abduction Act 1984 (CAA 1984) creates the criminal offence of child abduction. A parent or the person with custody of a child under 16 years of age commits an offence if he takes or sends the child out of the UK without one of the following:

  • The consent of all people with parental responsibility (PR);

  • The consent of the people with custody of the child;

  • The permission of the court.

(Section 1(3), CAA 1984.)

The maximum sentence is 7 years imprisonment.

Who is ‘a child’ for the purpose of defining whether permission to leave the country from the other person with parental responsibility is required?

The court technically has the ability to make orders allowing parents to move abroad with their children until the child is 18. However, in practice, the court has held that children over 16 are too old to be directed by the court, and orders are generally not made in relation to children of 16 and over.

If your ex-partner abducts your child you must take immediate advice. Legal aid is available for cases of child abduction.

The Reunite International Child Abduction Centre operate an advice line, you can call them on: 01162 556234.

They also have a list of lawyers who are specialists in this field, both here and in a number of foreign jurisdictions. You will need advice both here and in the foreign location. http://www.reunite.org/specialistlawyers.asp

IF YOUR CHILD HAS BEEN REMOVED FROM JURISDICTION OF ENGLAND AND WALES WITHOUT YOUR CONSENT

If your permission is required to remove or retain the child, but was not given when your former partner moved them, you can bring a civil application for the child's immediate return to the UK under The Hague Convention on Civil Aspects of International Child Abduction 1980.

A parent or person with custody of a child under the age of 16 also commits a criminal offence of child abduction if he takes or sends the child out of the UK without consent or permission.

Who is ‘a child’ for the purpose of defining whether permission to leave the country from the other person with parental responsibility is required?

The court technically has the ability to make orders allowing parents to move abroad with their children until the child is 18. However, in practice, the court has held that children over 16 are too old to be directed by the court, and orders are generally not made in relation to children of 16 and over.

COURT PROCEDURE TO FOLLOW

Before you can issue proceedings, you must attend what is known as a Mediation Information and Assessment Meeting (“MIAM”). This is a meeting with a specially qualified family mediator, who will explain to you the alternatives to the court process. The purpose of the meeting is to give you an opportunity to find out whether going to court would really be the best way of dealing with the issues that you face following your relationship or marriage breakdown (e.g. children, property and financial issues), and in particular whether mediation could be an effective alternative.

There are exemptions in specific circumstances – if there is evidence of domestic violence or a risk of serious harm to children the family will not have to attend a meeting.

Once you have been to a MIAM, if you wish to continue with your court application, the first step is to apply for either of the following:

  • A specific issue order if there is no Child Arrangements Order (‘CAO’) in place regulating your child's living arrangements.

A specific issue order is an order made by the court to resolve a particular issue in dispute relating to a child.

In this case you should fill in Form C 100:

https://formfinder.hmctsformfinder.justice.gov.uk/c100-eng.pdf

  • Permission to remove your child from the jurisdiction if there is an existing CAO in place regulating your child's living arrangements.

In this case you should fill out Form C1

https://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=50

and Form FM1

http://formfinder.hmctsformfinder.justice.gov.uk/fm1-eng.pdf

Form C1A should be completed if your child has suffered domestic violence or is at risk of abuse:

http://formfinder.hmctsformfinder.justice.gov.uk/c1a-eng.pdf

To learn more about this form and for notes to help you fill it out you can go to:

http://formfinder.hmctsformfinder.justice.gov.uk/c1a-notes-eng.pdf

Once you have completed the appropriate application form, you should send three copies to your local Family Court. The court fee is currently £215 and to find your local Family Court, visit: https://courttribunalfinder.service.gov.uk/search/spoe?aol=Children

If the application is not urgent, the court will schedule the First Hearing and Dispute Resolution Appointment, known as the FHDRA, which is a 30-minute hearing, at the same time that it issues the application. The court sends the application and notice of this hearing to the other party, at least 14 days before the date of the FHDRA.

The purpose of the FHDRA is to pinpoint the issues in dispute and try to resolve them as quickly and inexpensively as possible.

The court will send a copy of your application and notification of the FHDRA to both your former partner and the Children and Family Court Advisory and Support Service (CAFCASS). CAFCASS's role is to safeguard and promote your child's welfare and to give independent advice to family courts.

For more information about CAFCASS and their role: https://www.cafcass.gov.uk/

Before the FHDRA, CAFCASS will undertake safeguarding checks and make enquiries to inform the court of any risk of harm to your child. These enquiries include making checks of local authorities and the police, and conducting telephone risk identification interviews with you and your former partner. This is usually a formality and nothing to worry about but if the officer finds there is a risk of harm, you and your former partner may be invited to meet with the CAFCASS officer individually before the FHDRA to clarify these issues.

You, your former partner, your respective legal representatives and the CAFCASS officer must all attend the FHDRA. Depending on the arrangements at your local Family Court, your child(ren) may also be required to attend. A court-appointed mediator may also attend. The participation of mediators is arranged locally and their involvement varies between courts.

You should arrive at court at least 30 minutes before the FHDRA is scheduled to begin. Before going into court, the CAFCASS officer and the mediator (if you and your former partner agree) speak to you and your former partner (separately or together) to establish the issues in dispute and to help you to resolve them. If your child attends the FHDRA, the CAFCASS officer will meet your child and discuss their wishes and feelings about the proposed relocation. Your child will not, however, enter the courtroom or meet the judge.

If agreement is reached on some but not all aspects, the issues that remain in dispute are then identified. The CAFCASS officer tells the judge how they would recommend resolving the remaining disputed issues, taking into account any safeguarding matters that have been identified.

In court, the judge listens to or views evidence from you and your partner or your respective legal representatives about the dispute. In collaboration with the CAFCASS officer (and the mediator), he will help you to find a solution for the dispute.

If you reach an agreement on all issues, the judge will record the terms of the agreement in a court order and conclude the proceedings. If no overall agreement is reached, the judge will give directions and make a timetable to bring the proceedings to resolution. The usual case management directions made at a FHDRA provide for the following:

  • You and your former partner will supply witness statements on one another setting out your positions about the dispute.

  • An expert or CAFCASS (or both) will supply a welfare report. This will contain information about your child's welfare and a recommendation about how the dispute should be resolved.

  • The author of the expert or welfare report will attend future hearings to give oral evidence to the court.

An interim hearing (known as a Dispute Resolution Appointment (DRA)) or a final hearing will be scheduled.

The court will schedule a DRA if that is in your child's best interests. You, your former partner, and your respective legal representatives must attend the DRA. The author of an expert or CAFCASS welfare report will only attend the DRA if directed to do so by the court at the FHDRA.

At the DRA, the court will identify the issues to be decided and the extent to which those can be resolved or narrowed by the court. If agreement is reached, the judge will make an order reflecting the agreement and conclude the proceedings. If there is no overall agreement, the judge will identify any outstanding evidence required to achieve a final resolution of the dispute and give case management directions about the filing of any further evidence. A final hearing will then be fixed.

At a final hearing the judge will hear submissions from you and your partner or your respective legal representatives, oral evidence from you, your former partner, and if necessary, the author of the expert or CAFCASS welfare report. The judge will make a final determination of your application, which will be recorded in a court order.

It can take between 12 and 18 months to conclude court proceedings.

FORMALITIES AND PRACTICALITIES TO TRAVEL WITH YOUR CHILD ABROAD

A letter (see a template below) is usually enough to show you have permission to take a child abroad. You might be asked to show this at a UK or foreign border. The letter should include the other person's contact details and details about the trip. It also helps if you have with you evidence of your relationship with the child (e.g. birth certificate) and a marriage certificate (if your family name is different to the child's).

You should also check whether the country you’re travelling to has any specific rules. To find out, you should contact the foreign embassy in the UK.

In the case of the United States, for example, the U.S. Customs and Border Protection (CBP) strongly recommends that unless a child is accompanied by both parents, the adult must have a note from the child's other parent stating:

"I acknowledge that my wife/husband/etc. is traveling out of the country with my son/daughter. He/she has my permission."

Having the letter notarized is not necessary but highly recommended. Their website states,

"while CBP may not ask to see this documentation, if we do ask, and you do not have it, you may be detained until the circumstances of the child traveling without both parents can be fully assessed. If there is no second parent with legal claims to the child (deceased, sole custody, etc.) any other relevant paperwork, such as a court decision, birth certificate naming only one parent, death certificate, etc., would be useful."

Note: This letter can be used when one parent is taking a child on holiday with the consent of the other parent. Whilst there is not a requirement to have the letter certified by a solicitor or commissioner for oaths, it is recommended. You may also wish to take the child's birth certificate with you, and if you have a different surname from the child, your marriage certificate.

Please also contact the embassy for the country to which you are travelling to ensure that you comply with any local requirements there.

To whom it may concern:

I [FULL NAME] of [ADDRESS, EMAIL ADDRESS AND TELEPHONE NUMBER] am the [mother/father] of [CHILD]. [NAME], is [CHILD's] [mother/father].

We both hold parental responsibility for [CHILD]. Information about travelling child:
Name:
Date and place of birth:
Passport number:
Place of issue of passport:
Birth certificate number:
Issuing authority of birth certificate: Consent

I [NAME] consent to allow my child [NAME] to travel with [NAME] passport number [NUMBER] issued on [DATE] at [LOCATION] to [DESTINATION, INCLUDING ADDRESS] during the period from [DATE] to [DATE].

......................

[NAME OF PERSON GIVING CONSENT]
Signed by [NAME OF PERSON GIVING CONSENT] At [LOCATION] On [DATE]
Before me ........................
A Solicitor/Commissioner for Oaths

/ Didn't Find What You Were Looking For?

We can still help by answering your own custom question or by introducing you to the perfect lawyer.