Parental Rights and Child Welfare
In England the concepts of custody, care and control and access were abolished in 1991 and since then there are now three main concepts in connection with children:
The court also has power to make two other types of order:
- prohibited steps orders and
- specific issue orders.
A prohibited steps order limits certain parental rights and duties, for example an order not to take the child out of England and Wales.
A specific issue order provides particular steps someone is to take, for example that the child will go to a certain school or live at a certain address.
On all applications the child’s welfare is paramount in the court’s consideration. The court will consider in particular the following issues:
- 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 relevant characteristic;
- any harm which the child has suffered or is at risk of suffering;
- how capable each of the parents and any other relevant person is of meeting the child’s needs;
- the range of powers available to the court.
There is a presumption that the court should not intervene unless it is in the best interests of the child. Therefore the court will only make a formal residence order, or any other order, if there is a dispute, or if it is in the particular interests of the child to make an order nevertheless. So for example if on a divorce the parents agree that the children will live with the mother and spend alternate weekends with the father, the court will not make an order. On the other hand, if a child whose father has died lives with the mother and her new partner, the court may make a joint residence order in favour of both of them to provide that the partner also has parental responsibility.
The law also recognises that delay is likely to be harmful to the child's welfare. Nevertheless, there are delays in listing and in practice in court proceedings it can take six months or longer from an application to a final hearing.
It is always best to try to avoid court proceedings of course because the judge can only make an order, which those involved still have to comply with. There will also be issues arising in the future of a child’s life where parents have to work together.
Mediation is an inexpensive way to find solutions outside the court system and it is particularly suitable to resolve issues about children. Our support page has a wealth of resources for parents to help them to parent together successfully, nurturing their child.
For advice on your specific circumstances contact Alternative Family Law: ring or email us.
February 2010
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© Andrea Woelke 2009
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Disclaimer
This is an outline of the law, practice and procedure in England and Wales. It should not be taken as specific advice. All families and couples are different. The law may have changed since this was written and we therefore accept no liability for inaccuracies. Where examples are given, your personal circumstances may vary slightly, but the difference may be significant for the outcome of the legal process. Contact us for specific advice on your own circumstances.
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