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Separation and Children

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Dealing with the breakdown of a relationship can be a very difficult time but when there are children involved it becomes exceptionally harder and more emotional. Any child related issue requires a certain degree of flexibility and compromise between the parents and it is always sensible to try and agree matters amicably (if possible) with the help of a mediator or a solicitor before rushing to Court.

Unfortunately there are times when Court proceedings are unavoidable. In such cases it is worth noting that the court’s main consideration, will be the welfare and best interests of the child. When the court deals with any application they will always have the child’s welfare as their paramount consideration. When considering a child’s welfare, the court has a set of guidelines that it follows, also known as the ‘Welfare Checklist’ (s1(1) Children Act 1989). These include:

  • The ascertainable wishes and feelings of the child concerned
  • The child’s physical, emotional and educational needs
  • Likely effect on the child of any change in his or her circumstances
  • The child’s age, sex, background and any characteristics which the court considers relevant
  • Any harm which the child has suffered or is at risk of suffering
  • How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs
  • The range of powers available to the court under this the Children Act 1989

If the court deems it necessary, court orders can be granted which determine issues relating to children and almost any aspect of their upbringing. The most common orders are known as the Section 8 Orders. These include:

  • Child arrangements order - this focuses on with whom a child is to live, and with whom they are to spend time with or otherwise have contact
  • Specific issue order - determine a specific question which has arisen in connection with the child e.g. what school should the child attend, whether the child should have certain medical treatment etc
  • Prohibited steps order - is where the court prevents a certain action by a parent e.g. the changing of a child’s name, changing their school, relocation etc.

Who can apply for a Section 8 order?

An adult who has parental responsibility of the child in question will be able to, if deemed necessary, to make an application. This concept of parental responsibility was introduced by the Children Act 1989 and its purpose is to reiterate this idea of obligations and responsibilities. The legal definition of parental responsibility is “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

Helpful advice all parents should consider from the outset:

  • All decisions should be made in the best interest of the child
  • You will probably have to be flexible and compromise on arrangements for your children in order to reach a suitable agreement
  • Prior to pursuing settling matters through the court system, try and reach an agreement in an open and direct manner through alternative mediums including through solicitors, mediation or collaborative law
  • Consider an agreement that resolves the arrangements for the children in a way that respects their interests and promotes their welfare

If you are going through a relationship breakdown and you have children, please contact our specialist family lawyers on 020 7935 3522. 

 

 

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