FAQs

If you and your child’s other parent cannot agree on the child arrangements following separation, you might need to apply to the court for a Child Arrangements Order. Such an order can decide:

1. Where your child shall live
2. The time your child spends with each parents
3. The format of contact (face to face, phone calls, letters and card etc)

The first part of the order is the preamble and contains recitals and the second is the formal court order.

A recital records matters of fact that are helpful for the court to have on the face of the order, or agreements that cannot properly be framed as an undertaking or court order.

The order must be complied with. If it is not, you will see the warning notices on the body of the order and the consequences, i.e., you may be made to do unpaid work of pay financial compensation. You may also be held to be in contempt of court and imprisoned or fined, or your assets may be seized.

With that in mind, if you feel that the order is not working, given that you must comply with it, you should not act unilaterally and not comply with it; first you must consult the other party and see if they would consent to making changes. It is not unusual for there to be a provision in the final order for “any other contact that can be agreed”, which means that if you want to make changes between yourselves, by consent, then you can do so without the need to return the matter back to court. If this occurs, it is advisable to write down and agree on the changes you seek to make should this be questioned later on if court proceedings are issued.

Alternatively if the court is going well and you are thinking about applying to vary the order so you have more time with your child, the first step in to consult the other party. If they do not agree, the court would expect the parties to engage in mediation (if appropriate in your case) and see if the matter can be resolved before making an application to the court.

However, there might be situations that prevent you from seeking the agreement from the other parents such as a safeguarding issue that arises meaning you no longer feel the order is in your child’s best interest.

A party can also apply to the court vary the order on a C100 application form, but careful consideration would need to be given to this and you would be advised to obtain legal advice in the first instance. A court would not normally expect a party to return the matter back to court less than 12 months after a final order has been made.

However, if you are finding that an interim order is not working and you need the court to take steps to vary it, you can make an application to vary the order at any stage of the proceedings.

In all applications concerning children, the welfare of a child is the court’s paramount consideration and you must be able to demonstrate to the court why the change that you seek is in the child’s best interest. The court will also need to consider if the proposed change will affect the child and this is a factor you need to bear in mind before making your application.

If you are thinking about moving away with the children to somewhere else within the UK, you will need to consider how the children will be impacted by that move and how they will be able to maintain a relationship with the other parent. Your ex cannot stop you from moving away as long as the children will not be negatively impacted by the move and you are still able to facilitate arrangements for them to see the other parent, if an arrangement for this exists between you.

Moving within the UK

If you want to move to an area local to the other parent and it is not going to impact the existing arrangements for the children to spend time with them, your ex cannot stop you from doing this. It is not for your ex partner to decide whether or not you can move if it has no bearing on the children’s ability to spend time with your ex.

If you are looking to move further away and you know this is likely to have a significant impact on the children’s ability to see the other parent, you should have a plan in place for how their relationship with the children can be maintained and discuss this with the other parent first. This is particularly important as it may be that your move impacts which school the children attend and any decisions made regarding their education should be agreed jointly between you.

If you have thought everything through and believe what you are doing is in the best interests of the children, your ex still cannot stop you from moving. However, they are still able to apply to Court for a Prohibited Steps Order to prevent you from going if the disagree with your decision.

Moving outside the UK

If your ex has parental responsibility for the children, you will need their consent in order to move abroad with the children. This is a big decision to make and as with all big decisions involving children, these need to be jointly agreed with the other parent. You will need to consider the impact that moving abroad will have on the children and how it will affect any arrangements in place for them to spend time with the other parent. As with moving within the UK, if the other parent does not agree with your decision they can apply to court for a Prohibited Steps Order to stop you from moving, or alternatively, a Specific Issue Order for the children’s immediate return if you have already left. Equally, you could make an application for a Specific Issue Order allowing you to leave move abroad with the children which, if successful, means the other parent cannot stop you from going.

The best interests of the children will be the Court’s paramount consideration when determining whether you should be prevented from moving abroad/if the children should be immediately returned to the UK, which is why it is vital to fully consider all the factors that may affect the children before you make any decisions as you will need to be able to justify your decision.

Following the breakdown of a relationship, it can be difficult to sort out arrangements regarding children, including which parent they live with, and any time spent with the non-resident parent. This can often lead to arguments between parents, which can appear difficult to resolve. What causes more conflict is when one parent refuses to let the other parent see their child. This can be extremely distressing for a parent but also for children who may have been used to seeing their mother or father every day.

The Court will not permit a parent to stop contact unless there are significant concerns for a child’s safety and wellbeing. The Court is keen to promote a positive and healthy relationship with both parents where possible and so, no parent can stop the other from seeing their child unless a court decides that there would be a risk of harm to them.

If an agreement isn’t possible there are remedies in place to assist parents in dealing with this issue. CAFCASS may be able to assist in ensuring contact remains in place for the non-residing parent. They can help a Parenting Plan, allowing both you and your ex-partner to agree times for contact. This plan might involve overnight stays, or meeting for a certain time each week. If you are left with no choice but to go to court, you will usually be expected to have tried a Parenting Plan first.

A Parenting Plan can also help more generally with matters relating to your child’s education and healthcare. Under the Children Act 1989, if you have parental responsibility, then you have the right to a say in these matters. A child’s mother automatically has parental responsibility, and a father usually will. However, parental responsibility does not automatically mean that you have a right to see your child.

If your ex-partner is not willing to cooperate via this route, another option is to instruct a solicitor to write a letter setting out your contact proposals, and negotiate with your ex. This will make it clear that you are treating the matter seriously and are prepared to pursue all avenues.

Alternatively, a family mediator may be able to help you in reaching an agreement with your ex. A mediator is a trained neutral 3rd party individual who helps parties reach an agreement by talking with both parents. A mediation agreement has no legal force, but a solicitor can help you apply to court to make it legally binding.

If other methods are unsuccessful, you can apply to court for an interim contact order which allows you to have contact with your children until a Child Arrangements Order is made. A child arrangements order will set out how often you can see your child, and where.

The welfare of your child will be the court’s main concern as they view a child’s contact with their biological parents very important and will usually only refuse access if they believe there is a possible risk of harm to the child.

There are a number of reasons why you might seek an emergency order and you will be required to explain your reasons for the urgency when making your application to Court. The Court will generally only hear your case urgently if they consider that any delay in hearing the application would risk causing the children significant harm, whether that be physically, emotionally or psychologically. 

Without Notice applications

It may be that you need an emergency order to ensure the safety of you and the children but you are worried that if the abuser finds out you have applied for that order, it would place you and the children in a very vulnerable position and even greater risk of danger. If this is the case, we can ask the Court to hold an emergency hearing without notice to the abuser. The judge will hear your case and can make an order protecting you and the children without the abuser attending or even knowing about your application. The abuser will be served a copy of the order once you and the children are safe. 

Prohibited Steps Order and Specific Issue Order

A Prohibited Steps Order prevents a person from taking a particular step in relation to a child and a Specific Issue Order allows you to take certain action in relation to an issue. You may need to apply for an emergency Prohibited Steps Order if, for example, you are concerned that your children are at risk of being abducted by the other parent and/or you want to stop them from fleeing the country with the children. At the same time, you should also notify the passport office and the police so they are aware and can provide assistance if necessary. 

If the children live with you and the other parent wrongfully retains the children after spending time with them, you can ask the Court for an emergency Specific Issue Order that directs the other parent to immediately return the children to your care. 

What will the Court consider?

In all applications regarding children, the children’s best interests are the Court’s paramount consideration. The Court will consider the following factors when deciding whether the emergency order applied for is in the best interests of the children:-

• The children’s wishes and feelings (having regard to their age and understanding)
• The children’s needs
• The effect any change of circumstances would have on them
• The age, sex and background of the children
• Any harm the children may suffer or be at risk of suffering
• How each parent can meet the children’s needs

You can change your child’s surname provided that you have obtained consent from everyone who holds parental responsibility (PR) for your child. PR is a legal concept which refers to all the rights, responsibilities, and powers that a parent has towards a child. It imposes obligations such as providing a home for the child but also gives them the right to make important decisions about their upbringing including a change of surname. PR is automatically granted to biological mothers. The other parent will only acquire PR if they are named on the child’s birth certificate or is married to the mother at the time of the child’s birth. Other parties like family members or the Local Authority may also be granted PR using either a parental responsibility agreement or a Court Order.

Change of surname by agreement 

If you have permission from everyone with PR to change the child’s surname, the process can be completed via a deed poll. The deed pool would need to be lodged together with other supporting documentation at the Royal Courts of Justice where it will become a public record. It is important to obtain a prior consent of a a child aged 16 or 17 to the change of their name.

Application to the Court 

Most legal disputes about the child’s surname typically arise from a relationship breakdown. It is a common occurrence for one parent to wish to revert back to their maiden name after a divorce. The added complication is when the parties subsequently remarry and again change their surnames. In the absence of an agreement between, it may be necessary to make an application to the Court for a Specific Issue Order.

The legal test for applications concerned with a change of a child’s surname is laid out in the landmark case of Dawson v Wearmouth UKHL 18. The Court’s primary consideration will always be whether the change of surname is in the child’s best interests. In determining this issue, the Court will also have regard to the rationale behind the proposed change of surname to ensure that it is not designed to reduce significance of the other parent in the child’s life.

A surname is an integral part of every child’s life which forms part of their identify and helps connect them to their cultural and religious heritage. The following factors will therefore play a pivotal role in the Court’s mind when dealing with applications of such nature:

• The effect on the child should a change be allowed;
• How long the child has been known by their existing surname;
• The effect on the child should the change be refused;
• The reasons for the change of surname;
• The age and wishes and feelings of the child in the context of which surname does the child want to be known by.

The law does not support applications made for a convenience’s sake or out of sense of “ownership” about the child. Before embarking on a legal battle it may therefore be worth proposing that the child’s surname is double-barrelled as a way of compromise.

When you make a decision to a adopt a child, whether you’re an individual or a couple, it should be a happy and joyous experience but is also ban be a frustrating, challenging and can be a long-winded process. There are several ways in which you can adopt a child but most commonly are ‘agency’ or ‘non-agency’ adoptions. Non-agency adoptions are generally stepparent adoptions. Agency adoptions are through a Local Authority. You can also be inter-country adoption which is governed by other criteria.

As can be seen already there are several ways in which you can adopt a child and become their legal parent. By becoming a child’s legal parent through any adoption, it will give you parental responsibility for that child and it will extinguish any persons existing parental responsibility and so it is a serious lifelong commitment that you are giving to a child.

Agency adoptions are probably what most people will commonly conceive adoption to be.

To adopt a child there are certain preliminaries that must be established such as, you must be 21 years of age, you need to be domiciled or habitually resident in the UK and the child you wish to adopt must be under the age of 18 years.

You will be assessed thoroughly by a Social Worker, whether you are adopting as a single person or as a couple. This can feel intrusive and unnecessary when you may not understand the process and what is required. It can be overwhelming but with the correct legal advice and support, it can ease the process so that you are aware of what is expected.

Once the assessment is complete, and it a positive assessment, this will then be presented to a panel, who will review your assessment and hopefully recommend that you are a suitable person(s) to adopt a child.

You will then be ‘matched’ with a child. This will be an exciting time for your family, but there will naturally be apprehension in what and how this is going to impact on your life. There will be series of ‘introductions’ when it becomes very real. You will be supported throughout the whole process and eventually the child will move in and complete your family.

However, that is not the end of your journey as the adoption now needs to become legal. Before your application to adopt the child can be made to the Court that child must have been living with you for at least 10 weeks. The birth parents can either agree or challenge your application to adopt their child. It is only at a final hearing of your application that the Court will make the decision as to whether an adoption order can be made. There will also be a formal Court hearing when you can attend court with the child, and other family members if you so wish when you will receive a certificate – this is generally a celebration for your family, without the birth parents being present or told of the hearing.

You can remain unknown to the child’s birth family, but you can also be involved in post adoption contact with the birth parents which can assist of yearly updates, photos all of which can be managed by you or through the Adoption Agency.