The right approach for you and your children
You will be parents together for the rest of your lives and so we take the approach that it is best to advise and support you to agree arrangements that you are both willing to work with wherever that is possible. Here are a few options:
- We could give you advice and guidance whilst you negotiate an agreement yourself.
- We could give you advice and guidance whilst you go to mediation.
- We could negotiate on your behalf by letter, telephone or at round table meetings.
- We could guide you through the collaborative law process.
Where you are able to reach an agreement about the arrangements for your children we can help you draw up a parenting contract. Where agreement is not possible we can represent you in court proceedings.
What is parental responsibility?
Parental responsibility is all of the rights, duties, powers, responsibilities and authority which a parent of a child has in relation to that child and their property. Parental Responsibility is largely focused on what you can or should do for your child, rather than what rights you have over the child.
All birth mothers automatically have parental responsibility.
Biological fathers can acquire parental responsibility in several different ways:
- If the mother and father are married then the father has parental responsibility.
- If your child was born after 1 December 2003 then the father has parental responsibility if he is named on the birth certificate.
- If the parents are not married and the father is not on the birth certificate then the father can obtain parental responsibility through a legal agreement with the mother (called a Parental Responsibility Agreement) or through the courts (called a Parental Responsibility Order).Lots of fathers worry that following separation they cannot see their children if they do not have parental responsibility. This is not true. You can still agree with the mother that the children spend time with you or even live with you without parental responsibility. Or, if you cannot reach an agreement, then you can apply to court instead. Speak to us about your specific situation, your options and how we can help.Other people can also obtain parental responsibility through a Court Order. For example, a Local Authority may be given parental responsibility under a Care Order, or another family member like a grandparent may be given parental responsibility under a Child Arrangements Order or a Special Guardianship Order.
What is a Child Arrangements Order?
- There are two types of Child Arrangements Order:
- Where the children will live; or
- Who the children spend time with and when. A Child Arrangements Order about where a child will live used to be called a Residence Order. Before that, it was called Custody. This order gives the holder parental responsibility for as long as the order lasts if they did not have it already.A Child Arrangements Order about who a child spends time with and when used to be called a Contact Order. Before that, it was called Access. Parents can apply to the Court for a Child Arrangements Order. Other people who are important in children’s lives may also be able to apply, for example grandparents.
What if I have a specific issue which I need to resolve about the children e.g. a holiday, their name or school?
Sometimes parents struggle to agree about a one-off issue related to the children, for example whether you can take them on holiday, what school they should go to, what religion they should practice or what their name should be. We can help and advise you to reach an agreement. If you cannot reach an agreement, or you need a decision urgently, you can apply to court for a Specific Issue Order. If you make an application for a Specific Issue Order a judge will listen to what you both want and will then decide what should happen.
Can I stop my children’s other parent from doing something related to the children?
If you are worried about something the other parent might do, for example taking the children to live abroad, changing their name, or taking the children out of your care, then you have a couple of options. A solicitor can help you to find a way to reach an agreement. If you cannot reach an agreement, or the situation is urgent, then you could apply to court for a Prohibited Steps Order. A Prohibited Steps Order can stop someone with Parental Responsibility from doing something that they are otherwise able to do relating to your children.
Can I take the children abroad without the other parent’s consent and, if so, for how long?
- That depends on a number of factors, such as:
- Does the other parent have Parental Responsibility?
- Do you have a Residence Order or a Child Arrangements Order that says the children live with you?
- Do the children already have passports and, if so, who is looking after them?
- Why has the other parent refused to give their consent?
- Is Social Services involved with your family?
- The basic legal position is that you cannot take a child out of England and Wales without the consent of everybody with parental responsibility. It is a criminal offence if you do.However, if you have a Residence Order or a Child Arrangements Order that the children live with you, then you can normally take the children outside of England and Wales for up to 28 days without the consent of everyone else with parental responsibility.For advice specific to your family you will need to speak to a solicitor. We can help you by advising you about whether you are able to take the children abroad; advising you about the practical steps you will need to take; helping you to reach an agreement with the other parent; or, if you need to, applying to Court for a Specific Issue Order for permission to take the children abroad.
What is mediation?
You could go to mediation and we could help and advise you along the way. Mediation helps you work things out by attending meetings together with a trained mediator to talk through issues that you need to resolve such as money, your children or any other consequences of your separation. The aim is to reach an agreement that works for your family.
The number of mediation sessions you will need will depend on your requirements and the issues to be resolved. Most people going through mediation find it helpful to take advice and support from a family solicitor during the process. Where you are able to reach agreement we can make sure that it is fair and right for you. We can also help you to formalise the agreement in writing, for example by applying to the court for a financial order by consent or drawing up a parenting contract for you both to sign.
What is collaboration?
Most of the time the very best solutions are those which you work out together for yourselves. Collaborative law is a process where you and your former partner work out the issues arising on your separation in face to face meetings with each other and your own solicitors. Rather than dealing through your solicitors, you work together with them to reach the best solutions for you or your family. The number of meetings will depend upon the extent of the issues. Sometimes other experts are involved in the process, for example counsellors or financial advisers. Using collaborative law is a way of solving problems without having to go to court and you, your former partner and your solicitors sign an agreement that commits each party to trying to resolve the issues collaboratively. Your collaborative solicitor will not be able to represent you in court if negotiations break down.
We have two specially trained collaborative solicitors who would be happy to talk to you about this in more detail.
What is family arbitration?
Family arbitration is a way of resolving issues about your finances or your property if your relationship has come to an end and you have not been able to reach agreement. Arbitration is essentially a private court process. You both decide who the ‘judge’ will be (normally an independent barrister or solicitor) and what issues they are going to decide. Whether that be small issues along the way or the whole case, it is entirely up to you. At the start of the process you and your former partner agree not to back out without the other’s consent and to be bound by the award of the arbitrator.