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Family lawyers are often asked age related questions when it comes to child arrangements. Hannah Gumbrill-Ward, an Associate Solicitor in our Brighton team has set out below some answers to those commonly asked questions.
A Child Arrangements Order is an order from the court which details the living arrangements for the child(ren) following a separation. It can cover where the child lives, and when and for how long they will spend time with each parent. A Child Arrangements Order is a legally binding order.
Even though the term child custody is still frequently used, there has been no such concept, legally speaking, for over 30 years. ‘Contact’ and ‘residence’ orders have also been replaced and we should instead be referring to ‘child arrangements’ when talking about when, where and with whom children ‘live’ and/or ‘spend time’.
As well as Child Arrangements Orders, it is also possible to obtain court orders to deal with specific issues, like which school a child should go to, whether they should receive a vaccination or to obtain consent to move; you can also obtain court orders to prohibit certain steps being taken, like removing a child from their school.
You can find out more about Child Arrangements Orders and who decides what arrangements should be in place for your child(ren) by having a read of my blog on the topic.
This is a question that often arises where there is a pregnancy and the biological parents of the child in question either do not have a relationship (for example, if the pregnancy is a result of a one-off encounter), or their relationship has broken down.
During the pregnancy, the parent who is not carrying the child does not have any rights to make decisions relating to the pregnancy. Nor do they have a right to be present at, or even notified of, the birth of the child.
This is because an unborn baby is not recognised as a ‘legal person’ until birth in England, therefore the parent who has not carried the child will need to wait until its birth before taking any action to secure any parental ‘rights’. These rights and responsibilities are known as ‘parental responsibility’.
Being excluded from the pregnancy and birth can obviously be very distressing for that parent, but it is important to remain calm and non-confrontational. Given that these situations are often difficult to navigate, we would always suggest seeking the assistance of an independent and neutral third-party (like a family friend, or professional mediator) to try and help you reach a resolution of the issues between you.
Under English law, we refer to ‘child arrangements’ rather than child custody.
In many cases, the parent who is not carrying the child will want to ensure that they can have a relationship with that child once it has been born if the parents are separated or were never in a relationship in the first place. Due to the legal status of an unborn baby, that parent will need to wait until its birth before making any applications.
It may be that the issue of parentage needs to be dealt with alongside an application for a Child Arrangements Order if, for example, the father has not been named on the child’s birth certificate. A Declaration of Parentage declares (in a legal sense) whether a named individual is the legal parent of another, and this type of application can be used to add a father’s name to a child’s birth certificate. Before making an application of this kind, you would first need to understand who has been named on the child’s birth certificate. In England, parents have 42 days to register a child’s birth, so there may be a slight delay before you can make an application.
Before making any applications to court, it is always important to try and resolve matters in an alternative forum. You can read more about resolving parental conflict here.
You can find out more information on who decides child ‘custody’ arrangements by reading my other blog post on the topic.
There is no set age that determines when a child can make this sort of decision. Rather, the court is always under an obligation to consider the ‘ascertainable wishes and feelings’ of the child but in doing so, the court must take into account the age of the child and their understanding of the situation.
Even where a child does express a particular view, it will not always be determinative in a dispute between parents, particularly where that child is young or lacks the necessary maturity to understand the consequences of what they are saying. Because every child is different, the courts assess what weight to give the child’s wishes and feelings on a case-by-case basis.
Once the child becomes a teenager, it becomes more difficult to act contrary to their views because teenagers will often simply vote with their feet. The court therefore recognises the extra significance of an older child’s view but again, that does not mean it will be determinative if that view is contrary to their welfare interests.
My colleague, Gemma Hope, a director in our Brighton team has written a comprehensive blog post explaining the voice of the child in Children Act proceedings which you can access here. Within that blog, Gemma explains in depth how children’s views will be taken into account in court proceedings and how parents can help their children understand the decisions being made about them.