A Family Lawyer’s guide to five of the top most Googled Family Law questions in England and Wales relating to children

We previously answered five of the top most Googled questions in Family Law concerning divorce/separation in England and Wales. 

Below we have answered five of the top most Googled questions relating to family law matters involving children. 

1. What is Parental Responsibility?

Parental responsibility is “all the rights, duties, powers, responsibilities and authority by which law a parent of a child has in relation to the child and his property”. Those with parental responsibility can make decisions regarding where a child is to be educated, what medical treatment they are to receive, what a child should be called and what religion they should practice, amongst other things. Our colleague, Hilde Braaten-Resseth, considers the issue of parental responsibility and how that impacts on the care of a child here.

The question of who holds parental responsibility for a child may not be straightforward. Generally speaking, however, it will be:

• the child’s biological mother;
• the child’s father or second female parent, if married to/in a civil partnership with the biological mother at the time of birth;
• or, if not married to the mother at the time of birth, the child’s father or second female parent if registered on the child’s birth certificate;
• there is a parental responsibility agreement or a court order granting parental responsibility;
• someone who acquires it by way of a Parental Order – i.e. in the case of surrogacy;
• someone who acquires it as they have a Child Arrangements Order specifying that the child ‘lives with’ them;
• a Local Authority if named in a care order in respect of a child.

There is no limit to the number of people who can hold parental responsibility for a child. A child can, however, only have two legal parents.

2. What Are Private Children Law Proceedings vs Public Ones?

Private children law proceedings involve disputes between individuals, typically parents, regarding the upbringing of their child – where the child is to live, how much time they are to spend with each parent, where they are to go to school, etc. 

In contrast, public children law proceedings involve the state – usually the Local Authority where a child lives. The proceedings are often brought by Local Authorities due to concerns about a child's welfare.

It is important to keep in mind that the Local Authority can intervene in private children law proceedings if they think that the children are at risk of harm. 

3. What court orders can be made in relation to children in the English and Welsh courts?

The English and Welsh courts operate a ‘no order principle’. This means that they will not make an order in relation to a child/children unless it is necessary. 

There are three types of order the family court can make in private children law proceedings:

• Child Arrangements Orders: determining where a child lives and the time spent with any person.
• Specific Issue Orders: resolving disputes about specific aspects of parental responsibility, such as where a child should go to school, what the child should be called, etc.
• Prohibited Steps Orders: preventing a person(s) from making certain decisions or taking certain action in relation to a child.

4. How do courts make decisions about children?

A child’s welfare is the court’s paramount consideration when making decisions about a child – see section 1(1) Children Act 1989. The court has particular regard to the following factors (which are set out in section 1(3) Children Act 1989):

1. the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding) – we are often asked at what age the court will take a child’s views into account. Generally, and it will depend on the circumstances, it is from age 10 (depending on their “maturity”);
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 characteristics which the court considers relevant;
5. any harm which the child has suffered or is at risk of suffering;
6. how capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs; and
7. the range of powers available to the court.

CAFCASS (Children and Family Court Advisory and Support Service) or an Independent Social Worker (ISW) can play a significant role in helping the court determine what is in a child’s best interests. Both CAFCASS and ISWs are independent of the court.  They typically conduct interviews and assessments with parents and children to enable them to prepare a report setting out their recommendations for the court. The court may either follow that recommendation or depart from it if there are reasons to do so.

5. What is the difference between a ‘lives with’ order and a ‘spends time with’ order?

A ‘lives with’ order, as the name suggests, sets out with whom a child is to live. This is what used to be referred to as a ‘residence order’. More than one person can hold a ‘lives with order’ in respect of a child, even if the child does not split their time equally between them.

A ‘spends time with’ order sets out with whom a child is to spend time, and when and for how long, etc. This is what used to be referred to as a ‘contact order’. 

One consequence of having the benefit of a ‘lives with’ order rather than a ‘spends time with’ order is that a person who holds a ‘lives with’ order may remove the child from the jurisdiction of England and Wales for a period of up to 28 days without the permission of the other person(s) who hold parental responsibility. The caveat to this however is that (without prior agreement to do so) this must not interfere with the time the child is to spend with the other person(s) in accordance with any order and it is still a courtesy to notify others with parental responsibility in advance and to provide relevant travel details.