If you have children under 18, you will need to make decisions about their parenting. Most often this is in the form of a parenting plan. The courts discourage litigation and prefer parents to come up with parenting plans wherever possible on their own. This is part of the ‘no order rule’ – if no order is necessary, the court will attempt not to intervene.
These decisions can cover anything from where the children will stay during typical weeks, to holiday schedules and birthdays as well as important issues such as schooling, religion or medical care. In recent years, the courts have steered away from ‘residence’ and ‘contact’ and encourage parents to consider how best to ‘share’ the care of their children. Parents are encouraged to think about which arrangements might be best for the child/ren rather than consider the children's time as something to be 'shared out' fairly between the adults.
Parental Responsibility or PR gives parents the right to make major child raising decisions. In most cases parents share joint Parental Responsibility meaning they are expected to make these decisions together. PR is not seen as a right of the parents but rather the parents have ‘parental responsibility’ for their children, which includes a duty to protect and maintain them and provide them with a home. It also encompasses various issues relating to the upbringing of a child covering issues such as schooling or medical treatment.
All mothers automatically have parental responsibility and fathers also have this if they are married to the mother or are listed on the birth certificate. Once parental responsibility has been established, it does not cease upon divorce or separation.
If you would like to obtain parental responsibility and the other parent agrees, you can use a parental responsibility agreement which needs to be signed and witnessed at your local family court.
Informal Agreement and Mediation
In the majority of cases following a divorce or separation, parents will make their own arrangements regarding who their children will live with, how often the other parent will see them and how parental responsibility will work in practice. If there are difficulties reaching an agreement, mediation or collaborative family law can be helpful in overcoming any obstacles. However, a court will not be able to enforce an agreement reached informally. If agreement cannot be achieved between the parents, an application to court might be necessary.
Child Arrangements Orders
At court, one consideration you will both want to decide upon is whether the children will live with one parent and spend time with the non-resident parent or whether both parents will seek to share care, with neither parent technically being the resident parent. There are some minor differences in how the law approaches this, mainly in terms of permission to take the children abroad. The law is not clear regarding how much parenting the primary parent must have in order for the agreement to become a 'lives with' order.
If divorcing parents are unable to reach an informal agreement regarding the custody arrangements for their children or if it is not appropriate to seek to negotiate a parenting plan (eg. due to issues such as domestic violence), it may be necessary for the court to intervene. A family court can make a ‘Child Arrangements Order’ which determines:
- Which parent (or other carer) a child lives with
- The amount of time (if any) the child spends with the other parent
- The nature of indirect contact (if any) with the other parent - such as frequency of phone calls or text messages
A child arrangements order does not affect parental responsibility. Grandparents can also seek a child arrangements order to be allowed contact with their grandchildren if they cannot reach an informal agreement with either parent. The process is slightly more complicated if grandparents seek to make an application for a Child Arrangements Order as they first need permission from the court to apply.
Specific Issue and Prohibitive Steps Orders
Another court order which can be made where parents are unable to reach agreement relates to specific issues regarding parental responsibility. This is known as a ‘specific issue order’ and examples include:
- Deciding which school a child should attend where there is a dispute (eg. in case of religious schools)
- Determining if a parent can take their child abroad on holiday
Related to this is a ‘prohibitive steps order’ which essentially prevents a parent from doing something relating to parental responsibility (eg. prohibiting them from taking their child abroad on holiday).
Change of a Child's Surname
A parent can change a child under 16's name with a Deed of Change of Name (ie a deed poll). All those with parental responsibility must consent to the name change before you can change a child's name through a deed poll. If another parent with parental responsibility does not consent then you'll need to apply to the court to ask for permission through a 'Specific Issue Order'. The court will factor in how important a name change is in the child's best interests. As this is something taken very seriously by the courts, they will only grant an order if they deem a name change is absolutely in the best interests of the child.