Parental Rights & Child Welfare

In England the concepts of custody, care and control and access were abolished in 1991 and residence and contact orders were abolished in 2014. Here we explain how the child’s welfare is paramount when a court decides on parental rights and arrangements for 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.

You will also need to consider the following:

The Welfare Test

On all such applications the child’s welfare is paramount in the court’s consideration. The court will consider in particular the following issues:

  1. the ascertainable wishes and feelings of the child concerned (considered in the light of the child’s age and understanding);
  2. the child’s physical, emotional and educational needs;
  3. the likely effect on the child of any change in circumstances;
  4. the child’s age, sex, background, and any relevant characteristic;
  5. any harm which the child has suffered or is at risk of suffering;
  6. how capable each of the parents and any other relevant person is of meeting the child’s needs;
  7. the range of powers available to the court.

In practice judges find it very hard to make decisions on which parent is better at any of these points. Judges are reluctant to make value judgments on parenting altogether. That is why the single most significant factor in most cases is the present situation (number 3 in the list), often referred to in Latin as the “status quo”. Because of this, it is important to think carefully about letting a new situation arise because the court may then not want to change it.

In addition there are two important presumptions, namely:

Non-intervention Principle

The presumption is that the court should not intervene unless it is in the best interests of the child. Therefore the court will only make a formal child arrangements 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 otherwise. 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 child arrangements order to provide that the child should live with both of them to provide the partner with parental responsibility even though there is no dispute.

Involvement

Under the Children and Families Act 2014 the law presumes that involvement of a parent in a child’s life will further that child’s welfare. However,

  • involvement does not mean any particular division of the child’s time, but can be any type of involvement and
  • this only applies to a parent whose involvement in the child’s life does not pose a risk to the child on the evidence before the court.

Delay

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 of course always best to try to avoid court proceedings because the judge can only make an order, but cannot physically oversee the time a child spends with each parent. An order does not enforce itself and if someone does not comply with the order or takes a “work-to-rule” approach, matters can continue to be difficult. 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. This is why it is compulsory for anyone who wants to make an application to the court for a child arrangements order to attend a Mediation Information and Assessment Meeting (MIAM) first (with some exceptions). 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 Andrea Woelke who works as a consultant solicitor at Josiah-Lake Gardiner Solicitors: ring Andrea on 020 3633 0338 (+44 20 3633 0338 from abroad) or him (stating your full name, the full name of the other person in your case and your telephone number on which we can call you).

Please note that Josiah-Lake Gardiner Solicitors do not have a contract to take on cases on legal aid. To check if you may be able to get legal aid please go to this government website and contact a solicitor who has a legal aid contract.

6 February 2024 by Andrea Woelke

Children Parental Responsibility