A short guide to legal issues affecting children upon the breakdown of a relationship
It is hard to imagine anything more important than ensuring that the welfare of any child in this situation is prioritised. The Courts will act to protect children if called upon to do so and it is our duty as family law solicitors to ensure that we promote their well being too by giving responsible and appropriate advice on how best to resolve any issues which may arise. The relevant legislation covering this area of law is The Children (NI) Order 1995. Article 8 Orders replace the old species of ‘custody and access’ orders. There are 4 main types of Article 8 Order which are known as Residence, Contact, Prohibited Steps and Specific Issue Orders. Where appropriate a parent can also apply for what is known as an Article 7 Parental Responsibility Order. Further details of all these Orders are set out below.
This Order stipulates the types of Order that a parent can apply to a Family Court for to resolve arrangements. These are known as ‘Article 8 Orders'.
What is a Residence Order?
A Residence Order settles the arrangements to be made as to the person with whom the child should live. A Residence Order is not a “once and for all” Order as the old custody order often appeared to be. A custody order usually meant that the custodial parent had the right to the everyday care and control of the child, together with the power to make the most routine and some major decisions about the child’s life. Although custody orders could always be altered, the Court would require highly convincing evidence before it could be persuaded that a transfer of custody from one parent to another was justified. Final Residence Orders will be made up until the child reaches the age of 16, however, if circumstances change an application can be made to the court to vary any Order made. Residence Orders can also be made in favour of more than one person, for example, to reflect a shared care arrangement and they can also be obtained on an “ex-parte” basis ie. on an emergency basis without the Respondent being present. This will only be granted for a short period of time and in particular circumstances where there is an urgent requirement for such an Order to justifiably be made.
What is a Contact Order?
A Contact Order replaces the old “access order”. They require the person with whom the child is living to allow the child to visit or stay with the person named in the Order, or for that person and the child otherwise to have contact with each other. Where the parties are unable to agree over the degree of contact which should take place with the non-residential parent, either party may ask the Court to determine the extent of the contact arrangements. Contact Orders can stipulate not just the frequency and duration of contact, but can also address issues such as supervision of contact, venue of contact, holiday contact and other such specific issues where appropriate.
What is a Prohibited Steps Order?
A Prohibited Steps Order directs that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the Order, must be taken by a person without the consent of the Court. An example of a Prohibited Steps Order would be an order precluding a parent removing their child from Northern Ireland.
What is a Specific Issue Order?
Specific Issue Orders, like Prohibited Steps Orders, are designed to be made either on their own, or together with a Residence or Contact Order.It enables the Court to give directions to determine a specific issue which has arisen, or may arise, in connection with any aspect of parental responsibility for a child, for example, the decision to change a child’s surname, choice of schools, religious upbringing, or medical treatment.
What is a Parental Responsibility Order?
Parental Responsibility is defined as “All the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child and his property”. This covers the whole range of parental rights and duties and in this respect it is similar, but not identical to, the old concept of ‘legal custody’. The Order does not attempt to define what these rights, duties, powers etc. actually are as it was felt that to do so would be a practical impossibility as the list ‘must change from time to time to meet differing needs and circumstances’ (Law Commission). Applying previous legislation and Court decisions parental ‘rights’ may include the right to determine where the child should live, the child’s education, the child’s religion the right to discipline a child, consent to the child’s marriage, authorise medical treatment, administer the child’s property, appoint a guardian, agree to adoption and consent to a change in a child’s name. Parental ‘duties’ include the duty to protect a child, maintain the child, secure the child’s education, and to control the child. A mother automatically has parental responsibility for her child. Fathers do not always have automatic parental responsibility for their child, for example if they are not married to the mother and are not named on the child’s birth certificate, and we can advise you on how to obtain parental responsibility either by agreement, or by way of a court order, if necessary.
What else can the Court do?
The supplementary provisions set out in the Children Order are intended to preserve the greatest possible flexibility of the Court's powers in relation to Article 8 Orders so that the Court can make interim Orders, delay implementation of orders or attach other special conditions to orders where the circumstances call for it. The Court can for example, direct that the Order be made to have effect for a specified period, or contain provisions which are to have effect for a specified period.
Principles Governing Children’s Law in Northern Ireland
There are a number of key principles which we will advise you on in respect of determining any of the issues outlined above. The main principle to be upheld is that the child’s welfare is paramount. In ensuring that the child’s welfare is met any parties involved in negotiating agreements or making court orders should have regard to what is known as ‘the welfare checklist’ which sets out the factor to which regard must be paid in making decisions for children which are as follows:
-The wishes and feelings of the child.
-His/her physical and emotional needs.
-The likely effect of change in his/her circumstances
-His/ her age, sex, background and any relevant characteristics.
-Any harm which he/she has suffered or is at risk of suffering.
-The capacity of the parent/others to meet needs.
Where a Court is considering whether or not to make one or more orders with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all. This is called the ‘No Order’ principle. In any proceedings in which any question with respect to a child arises, the Court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.
Why go to Court?
If parties cannot reach an arrangement in an amicable manner, either directly or through mediation/ collaboration or by negotiating through their respective solicitors, then the family court may be required to make a decision.
What is the Procedure in applying to the Court?
The Application consists of:
C1 The Application Form
C1aa Supplemental Form setting out any allegations of violence/ harm
C2 The Application for leave
C3 The Notice of Hearing
C3a The Notice for Hearing to Non Parties to the proceedings
C4 Acknowledgement of Service
C5 Form to be used when an address is not to be disclosed
C6 Statement of Service
What Information Do The Forms Require?
Details of the children e.g. name; date of birth; special needs; with whom they reside; identity of the parents; what Orders are sought, namely what do you want from the proceedings e.g.Contact Order, Residence Order, Parental Responsibility Order, Specific Issue Order Prohibited Steps Order
What directions you want the court to make?
Before applying to the court, the parties will be expected to have made attempts to resolve the matter by agreement and any such relevant correspondence should be attached to the court application.
What happens once the application form is completed?
You must sign and date your statement outlining the Orders sought and your reasons for applying.
Your legal representative will then send the court documents along with a Summons for the Court Office to issue on the other party informing them of the proceedings and asking them to attend.
A fee of £50 is payable to the court to have this done. There is also a Summons fee of £16.
The court fixes a date for a preliminary hearing or what is known as a Directions appointment. This is a hearing which may discuss issues such as:-
the timetable for proceedings as delay in the proceedings is prejudicial to the welfare of the child;
problems regarding the service of documents on the other party;
opportunity for mediation/preparation of reports by the Court Children’s Officer;
transferring the case.
Sufficient time must be allowed to serve the proceedings on the Respondent.
There are several methods of serving the proceedings on the other party:
Personal delivery on the other party.
By first class post to the other party’s address.
If the other party has a solicitor the proceedings can be sent to them by post, fax or delivered personally.
Within 14 days after the service of the application the form of Acknowledgement must be filled in and returned to the court either by the other party or his solicitor.
An application may not be resolved on the first directions hearing, although every attempt will be made to do so; sometimes a case will be adjourned for a welfare report to be prepared by the Court Children’s Officer who will liaise independently with the parties, in some cases offering mediation to the parties, and who may meet with the child in order to ascertain what is the best decision for the welfare of the child.
Statements of Evidence
Each party may be directed to file and serve written statements of evidence upon which they intend to rely on in court if the case is to proceed to hearing. If they do not disclose something in their statement, it will be very difficult to rely on it in court.
What Information is required for the Statement of Evidence?
Proposed living arrangements for the child's School arrangements
Any health problems of the child
Location of the other parent
Parental attitude to the proposed Order
The child’s wishes and feelings where appropriate
Any other relevant concerns
What is a Court Children’s Officer/ Welfare Report?
The Court has power to request a report on the child’s welfare from social services if they have been involved with the family or from the Court Children’s Officer who is a social worker who works in the court for this purpose. Social Services must arrange for a suitably qualified person to prepare such a report.Such reports are common in contested cases where an agreement cannot be reached.They can take a number of weeks to prepare.The report may be directed to be provided either orally to the court or in writing. A Court Children’s Officer may arrange mediation with the parents to try to narrow the issues in dispute
This mediation may be conducted either together or separately (which is known as ‘shuttle mediation’). Where a child is of sufficient maturity to express a view, the Court Children’s Officer may meet with the child.
Your legal representatives have a duty to negotiate to reach an amicable solution. Any agreement reached must be appropriate and child friendly bearing in mind the age and circumstances particular to each case and the welfare checklist.
At the hearing, the Applicant’s evidence is normally put to the court first by their legal representative. Then any party with parental responsibility has a chance to put their evidence to the court. A hearing can be conducted either by the parties giving direct evidence or by way of submissions by the legal representatives.
The Judge delivers his/her judgement as soon as possible after the hearing and the court must give it's reasons for it's decision.