When parents separate, there may be issues which affect their child or children — for example, where the child or children will live and how long the child or children will spend with the other parent. These types of orders have been widely referred to in the past as residence and contact orders, but these terms are no longer in use.
In the event that the parents are unable to reach an agreement, it may be necessary for one parent to make an application to the court for an order to resolve the issue in dispute. To apply for a court order, the parent will need to have parental responsibility for the child.
Parental responsibility is described as all rights, duties, powers, responsibilities and authority which, by law, a parent of a child has in relation to the child and his or her property. The child’s mother will automatically have parental responsibility by virtue of the child’s birth. The child’s father will have parental responsibility by either being married to the mother, being named on the child’s birth certificate (for births registered after 1st December 2003) or having entered into a parental responsibility agreement with the mother and/or by order of the court. For parents who do not have parental responsibility, they must first seek permission of the court before issuing their application.
There are four main types of orders in relation to the Children Act proceedings:
This order sets out which parent the child should live with. It is also possible to have a shared live-with order agreed between the parents.
This order requires the parent with whom the child shall live to facilitate time spent with the other parent, whether that be by visitation or overnight stays. This order will often set out the arrangements on a defined basis.
This is an order which determines an issue that the parents have been unable to decide themselves — for example, a child’s name, where a child should be educated and whether a child should undergo a particular medical treatment
This is an order that prevents one of the parents from doing something which is not consistent with the child’s welfare or upbringing, such as abducting a child, moving a child to another jurisdiction or changing a child’s name.
In most cases, these types of orders will be made on an emergency basis so as to preserve the status quo until such time as the court is able to determine the issues before deciding an order which is in the best interests of the child.
In many cases, the parents will have considered the future arrangements for their child at the time of their separation and then seek for the same to be either drafted into a Deed of Separation or Child’s Written Agreement, thus preventing the need for the court’s intervention.
