The Current Law

The law in relation to children in England and Wales comes from the Children Act 1989 which establishes a number of concepts and broad principles:-

Parental responsibility (PR) – these are the rights and responsibilities that go with being a parent. The child’s mother will automatically have PR. The child’s father will have PR if married to the mother or named on the birth certificate. It is possible to acquire it via a court order or written agreement.

Child arrangements – the original concepts of “contact” and “residence” which replaced custody have now themselves been replaced with the concept of “child arrangements” – broadly with whom the child lives and how often and in what circumstances the child spends time with the parents. The court can make a broad range of orders setting out the child arrangements.

Welfare – the court’s paramount concern will always be the welfare of the child. We have a child centred, welfare-based approach which means there is carte blanche to come up with a bespoke outcome in each case. There is a checklist, set out below, which allows the court to consider what is in the best interests of the child.

No order – the court does not routinely make an order governing the arrangements when parents separate. Most parents do not have a court order or even a written agreement governing the arrangements.

Specific Issue/Prohibited Steps - In the event of a dispute, the court can make specific issue orders (about a specific issue in a child’s life - typically medical treatment, change of name, religion or education) or prohibited steps orders which cover the same sorts of issues but which prohibit something from happening.

The court decides how to do this by reference to the “welfare checklist”, as follows:-

  1. the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)
  2. his physical, emotional and educational needs;
  3. the likely effect on him of any change in his circumstances;
  4. his age, sex, background and any characteristics of his which the court considers relevant;
  5. any harm which he has suffered or is at risk of suffering;
  6. 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 his needs;
  7. the range of powers available to the court under this Act in the proceedings in question.