Parental alienation is a term that comes up frequently in a family law context, including in the mainstream media, and especially on social media.
But the term is often quite misunderstood, and few non-lawyers will know how the family court will deal with a claim by one parent that the other parent has alienated their child against them.
Such claims will normally be made in the course of child arrangements proceedings, when one parent has applied to the court for an order that the child live with, or have contact with, them.
But before we look in detail at how the court deals with parental alienation claims we first need to examine what exactly is meant by the term ‘parental alienation’.
As mentioned above, the term ‘parental alienation’ is often misunderstood.
For example, it is often referred to as a ‘syndrome’, as if it was capable of being diagnosed.
But this is not how parental alienation is viewed by the courts.
There is in fact no legal definition of ‘parental alienation’. Perhaps the closest thing to an ‘official’ definition is the approach taken by the Children and Family Court Advisory and Support Service (“Cafcass”), which uses the term “alienating behaviours” to describe behaviours where one parent or carer expresses an ongoing pattern of negative attitudes and communication about the other parent or carer, that have the potential or intention to undermine or even destroy the child’s relationship with their other parent or carer.
Cafcass also say that: “These behaviours can result from a parent’s feelings of unresolved anger and a desire, conscious or not, to punish the other parent or carer. Alienating behaviours range in intensity and their impact on children.”
As to exactly what type of behaviours can be involved, it has been said that: “These behaviours can include negative attitudes, communications and beliefs that denigrate, demean, vilify, malign, ridicule or dismiss the child’s other parent. It includes conveying false beliefs or stories to, and withholding positive information from, the child about the other parent, together with the relative absence of observable positive attitudes and behaviours.” (Johnston and Sullivan, 2020).
Whether there have been any such behaviours by one parent is simply a matter of fact for the court to decide. As the President of the Family Division has said:
“What is important, as with domestic abuse, is the particular behaviour that is found to have taken place within the individual family before the court, and the impact that that behaviour may have had on the relationship of a child with either or both of his/her parents. In this regard, the identification of ‘alienating behaviour’ should be the court’s focus, rather than any quest to determine whether the label ‘parental alienation’ can be applied.”
The court will deal with allegations of parental alienation in a similar way to any other allegations that one parent might make against the other. In short, it will be all about the evidence.
The evidence will generally take two forms: the evidence of the parties (and any other witnesses they may call), and expert evidence.
The parties will give their evidence in two ways: in the form of written statements and orally in court, when the other party will have the opportunity to cross-examine them.
Whether or not an expert (for example a psychologist) is instructed to give evidence is a matter for the court to decide. If the court does direct that an expert be instructed, it will usually give detailed directions as to who should be instructed, and the remit of their instructions. The expert will carry out those instructions, prepare a report, and give evidence orally in court.
The court will normally decide the truth of the parental alienation allegations at a ‘fact-finding’ hearing. At the hearing the court will go over the allegations in detail, and decide whether they have been proved.
The findings will then be used at the final hearing, when the court will decide what order or orders should be made on the child arrangements application.
The way that the court deals with parental alienation allegations can be illustrated by two case studies from real cases, one in which the allegations were found to be proved, and one in which they were not proved.
The first case concerned a father’s application for a child arrangements order, for his son to live with him.
The background to the case was as follows.
The parties were unmarried. They had an on/off relationship, which ended when their son was born in 2016. Thereafter, the father had extensive contact with his son, including staying contact.
In or around December 2020, the mother made an allegation to her GP that the father had inappropriately touched the child. She also informed the father that he may not be the biological father, and that she was moving away.
According to the father, this coincided with him requesting parental responsibility. The father stopped seeing the child in January 2021, when the mother suddenly relocated from Kent to Manchester, without giving the father her new address.
The father then made his application, in April 2021.
The court ordered a psychological assessment of the family and for the local authority to investigate the case and prepare a report.
Both the psychological assessment and the report were clear that there had been parental alienation on the part of the mother which would cause significant harm to the child, and that the child had already suffered emotional and psychological harm in the care of his mother.
The local authority also very clearly recommended a change of residence for the child, from the mother to the father.
The mother had been found to have been continually reporting that the child had been sexually harmed by his father, despite an investigation by Children’s Services finding no evidence of this. The allegations against the father had been made in order to alienate the father after he had indicated to the mother that he wanted to be named on the child’s birth certificate, to enable him to have parental responsibility.
In the light of these findings the court made an order in June 2022 that the child should be moved to live with his father, pending further assessment and a final hearing.
The final hearing took place in March this year.
The evidence at the final hearing was clear: the child had suffered, and would continue to suffer, from significant emotional harm if returned to the care of his mother.
Accordingly, the judge had no hesitation in concluding that the child should remain living with his father. She therefore ordered that the child should live with the father.
The second case illustrates a not uncommon phenomenon: an allegation of alienating behaviour being used as a counter-allegation to an allegation of domestic abuse.
The case concerned a mother’s application for a child arrangements order for the children, who were aged 12 and 9, to live with her. At the time the children were having no direct contact with their father, consistent with their expressed wishes.
In connection with her application the mother made numerous allegations of serious domestic abuse against the father. The father, in turn, alleged that the mother had alienated the children against him.
The court fixed a fact-finding hearing to determine the truth of the parties’ allegations against each other. The hearing took place over six days, in March this year.
The full findings after such a long hearing would obviously take some time to repeat. In short, the court made findings of fact in respect of the father’s use of coercive controlling behaviour towards the children and towards the mother, neglect of the younger child’s medical needs, financial control over the mother, making major decisions about the children’s lives without the mother’s consent, providing misleading information to the court and using court proceedings to emotionally torment the children and the mother.
Further, and most significantly, the court made findings that the father had raped the mother.
Meanwhile, the court found none of the father’s allegations to be proved.
It should also be noted that the court made an order that the father pay the mother’s legal costs, which were assessed at £50,445.40.
At the next hearing, a Dispute Resolution Appointment, the father indicated that he did not accept the court’s findings, but did accept that until and unless the findings were successfully appealed they were binding on all parties, and for that reason he did “not oppose anything.”
Accordingly, the court made an order that the children live with the mother, and have indirect contact only with the father.
But that was not all. The court also made an order permitting the mother to change the children’s surname, an order restricting the father’s parental responsibility for the children (including prohibiting him from communicating with their schools), and an order barring the father from making any application in relation to the children without the court’s permission, until the youngest child attains the age of 16.
Obviously, this case was just as much about domestic abuse as parental alienation, but it does demonstrate the lengths that the court is prepared to go to establish the truth of allegations by one parent against the other. Parental alienation allegations are a serious matter, and the truth of the allegations is likely to have a considerable bearing upon the outcome of the case.
It goes without saying that all parents will normally do everything they reasonably can to keep their children safe. And quite often a parent will feel that it would be unsafe for their children to see a particular person. What legal steps can they take to stop that person from seeing their children?
In this article we will look at who can see your child, why a court might stop someone’s contact with a child, how the court decides who can see a child, and other related matters.
In most cases the ‘someone’ will, of course, be the parent with whom the child does not live, and this article will therefore be primarily concerned with the issue of contact between that parent and the child.
Note that what is often still referred to as a ‘contact order’ is technically now a child arrangements order, but for the sake of simplicity we will refer to it here as a contact order.
Obviously, a child will come into contact with many people during its life, and there is no restriction upon who they can have contact with, unless a court has ordered otherwise.
But that is not to say that everyone has a legal right to have contact with your child. If you do not agree to them having contact then they will only have such a right if a court has made an order permitting them to have contact with the child.
And this is so even if that person has parental responsibility for the child. Parental responsibility does not include an automatic right to have contact with the child. There are many fathers, for example, who have parental responsibility but do not have contact with their child.
But parental responsibility is still relevant, as clearly a court is more likely to make a contact order in favour of someone who has parental responsibility.
And that brings us to our next question: who has parental responsibility for a child?
All mothers will acquire parental responsibility automatically, as will fathers if they are married to the mother.
Unmarried fathers do not acquire parental responsibility automatically, but they will acquire it if they are named as the father on the child’s birth certificate, or if the mother agrees to them having parental responsibility, and a parental responsibility agreement is signed.
Otherwise, anyone seeking parental responsibility will need to acquire it via a court order.
The starting position for the court in most cases is that contact with both parents and, to a lesser extent, with close relatives such as grandparents, is likely to be a good thing for the child’s welfare.
In fact, there is a statutory presumption that the involvement of both parents in the life of the child will further the child’s welfare, unless the contrary is shown.
So there does really have to be a good reason for the court to stop contact between a parent and their child. Possible examples of such reasons are that the parent has shown no interest in the child, and has had no contact with them for a considerable period of time; and that the parent has been involved in serious criminal activity, such as using Class A drugs, or committing offences against children.
But the most common reason is that that parent has been found to have seriously abused the other parent and/or the child. Domestic abuse is the primary reason why courts order that a parent should have no contact with their child.
As the law stands at present a finding of domestic abuse does not automatically mean that that parent should have no contact with their child, although it will often have a bearing upon the amount and type of contact that should take place.
There are, however, some who believe that there should be an automatic ban on domestic abusers seeing their children.
For example Kate Kniveton MP, who was herself a victim of abuse, has called upon the government to change the law to bring about a presumption of no contact between an abusive parent and their children. Whether such a presumption ever becomes law, we will have to wait and see.
Often, one parent will want to stop the other parent from seeing their child because the other parent fails to pay child support maintenance for the child.
However, whilst this can be extremely frustrating for the parent with care of the child, failure to pay child support is not of itself normally a sufficient reason for the court to make an order stopping the ‘non-resident’ parent from having contact with the child.
Obviously, the parent with care should take other steps to ensure that the non-resident parent pays the child support.
Where there is already a contact order in favour of the other parent then if the parent with whom the child lives wants to stop the contact they will have to apply to the court to have the contact order varied or stopped entirely.
In such a situation the parent making the application will of course have to show to the court that there has been a change in circumstances since the original contact order was made, such that the contact should stop.
Where there is no contact order in existence the parent with whom the child lives can themselves apply for a child arrangements order, stating that the child should live with them and have no contact with the other parent.
In practice, however, the most common scenario is that the parent with whom the child lives will refuse to allow the other parent to have contact, and the other parent will apply to the court for a contact order. The court will then have to decide whether contact should take place.
The question whether or not a court will make a contact order normally relates to someone closely connected with the child, such as a parent or grandparent.
But sometimes the issue relates to whether the child should have contact with someone with whom they are not closely connected, for example where it is considered that such contact may be harmful to the child.
In such circumstances a parent can apply to the court for a prohibited steps order, restricting or prohibiting contact between that person and the child.
Whatever decision the court is being asked to make in relation to a child, it will base its decision upon what it considers to be best for the welfare of the child. In so doing, it will have regard in particular to the following matters, referred to as the ‘welfare checklist’:
1. The ascertainable wishes and feelings of the child concerned, considered in the light of the child’s age and understanding. Thus if, for example, an older child expresses a very clear wish that they do not want to have contact with one of their parents then that is a matter to which the court will attach considerable weight, and it may even decide the outcome of the case.
2. The child’s physical, emotional and educational needs.
3. The likely effect on the child of any change in their circumstances – this can obviously be relevant if the court is asked to stop a parent from seeing the child.
4. The child’s age, sex, background and any characteristics of his or hers which the court considers relevant.
5. Any harm which the child has suffered, or is at risk of suffering. This is of course the primary reason why a court may stop someone from seeing the child, as will be seen from the examples of why a court may stop contact mentioned above.
6. How capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs.
7. Lastly, the range of powers available to the court, for example ordering that the contact be indirect only (such as via letter, telephone, email, etc.), rather than direct ‘face to face’ contact.
In short, anyone wishing to obtain an order stopping someone from seeing their child will need to persuade the court that that is the best thing to do for the child’s welfare, having regard to these factors.
Stopping someone from seeing your child, particularly the other parent, is a serious step to take, which could obviously have a very significant effect upon your child. And just attempting to stop the other parent from seeing your child could have serious consequences for your relationship with the other parent, which in turn could harm your child.
It is therefore essential that that you seek expert legal advice, before making any attempt to stop someone from seeing your child.
At Walker Family Law we have highly experienced expert family lawyers, who can give you the advice that you require. To get in touch with us, simply fill in the form on this page.
And for more information about child arrangements orders generally and the services we offer, see this page.
Please note that this article sets out the law as it is in England and Wales. The law in other parts of the United Kingdom may differ. You should seek advice from an expert in the law of the particular country concerned.
Parental responsibility is a term that often crops up in family law-related discussions. Parent-child relationships are often valued, despite common misunderstandings about their nature and significance. Often someone in such a relationship will apply to the court for a child arrangements order. But does a child arrangements order give parental responsibility for the child (assuming they did not have it already)?
Before we answer that question we should first remind ourselves exactly what parental responsibility is, and who gets it automatically.
We will also look at just what a child arrangements order is.
As mentioned above, the concept of parental responsibility is often misunderstood.
In particular, it is commonly mixed up with the concept of ‘parental rights’ over the child.
In fact, that concept was largely done away with when the Children Act 1989 was passed, replacing it with the concept of parental responsibility.
The Act defines parental responsibility as: “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.
This definition is not particularly helpful, as it doesn’t include a list of ‘parental responsibilities’. The decision to not list all ‘parental responsibilities’ in the Act was a positive decision.
But we can give a few examples: the responsibility to maintain the child, the responsibility to ensure that the child is educated, and the responsibility to ensure that the child receives appropriate medical treatment are important ones.
In general, parental responsibility means the legal right and responsibility to make important decisions about a child’s upbringing.
Certain people do not have to do anything to acquire parental responsibility – they acquire it automatically.
All mothers acquire parental responsibility automatically, as do fathers if they are married to the mother.
Unmarried fathers do not acquire parental responsibility automatically, but will if they are named as the father on the child’s birth certificate, or if the mother agrees to them having parental responsibility, and a parental responsibility agreement is signed.
A child arrangements order is not a parental responsibility order.
A child arrangements order determines where a child should live and their contact arrangements with others.
There are therefore two types of child arrangements order: one that states who the child should live with, and one stating what contact the child should have with anyone else.
The difference between the two is important for parental responsibility, as we will see now.
The rules relating to this are slightly complicated, but we will simplify them and set out the most important parts.
If a father does not already have parental responsibility and the court makes a child arrangements order stating that the child will live with them then the court must also make an order giving them parental responsibility.
If a father does not already have parental responsibility and the court makes a child arrangements order stating that the child should have contact with them then the court must decide whether it would be appropriate to also make an order giving them parental responsibility.
Lastly, if the court makes a child arrangements order stating that the child is to live with anyone who is not a parent or guardian of the child, that person will have parental responsibility for the child while the order remains in force.
Please contact us if you require any further information.
For more information about child arrangements and how we can help, see this page.
On the face of it, a child arrangements order is quite simple: it states with which parent(s) the child should live and, if with only one, what contact the child should have with the other parent.
But there can be much more to child arrangements orders.
Here we look a little more closely at what exactly a child arrangements order is, and what it can include, apart from simply setting out living and contact arrangements.
The starting point is the statutory definition in the Children Act 1989 for a child arrangements order.
The Act states:
“child arrangements order” means an order regulating arrangements relating to any of the following—
(a) with whom a child is to live, spend time or otherwise have contact, and
(b) when a child is to live, spend time or otherwise have contact with any person”
Note firstly that the definition is not limited to parents. A child arrangements order can also be made in relation to someone else, such as a grandparent.
Courts can order a child to live with multiple people, like splitting time between parents, without any restrictions.
Another point to note from the definition is the reference to spending time or otherwise having contact. What is the difference between the two?
‘Spend time’ means direct face-to-face contact between the child and the individual, including daytime or overnight visits.
‘Otherwise have contact’ refers to other types of indirect contact, such as video call, telephone, messaging, letters, email, and so on. It can also include such things as the sending of school reports and medical information by the parent with whom the child lives to the other parent.
Contact can also be supervised or unsupervised. Supervised contact will be ordered where the court is not sure that it would be safe for the child to spend time solely in the care of one person, so it orders that it should be supervised by a trustworthy person, such as a relative or the staff at a contact centre (see below).
A child arrangements order may also include directions and conditions.
These can include such things as where children should be ‘handed over’ at the start and end of direct contact; who may be present when the handover takes place; who should supervise the contact; and how the parties may communicate between themselves.
Conditions may include prohibiting alcohol or non-prescribed drugs for a set period before or during the child’s visitation.
The court may order contact at a child contact centre if it deems it beneficial for the child’s welfare.
In such cases the court order will state the name of the contact centre, who will provide the centre with a copy of the order, who will complete the contact centre referral form, and who will pay any costs charged by the centre. It will specify who brings the child to the centre and if they can be present during the contact session.
Centre staff may support or supervise the contact, aiding its smooth progress or observing and providing reports on the session.
Lastly, a child arrangements order may also contain ‘activity directions’ or ‘activity conditions’, requiring a person to take part in an activity that would, in the opinion of the court, “help to establish, maintain or improve the involvement in the life of the child concerned of that individual, or another individual who is a party to the proceedings.”
Activities may include such things as parenting classes, and programmes to address violent behaviour.
For more information about child arrangements, and the services we offer, see this page.
When parents separate they will obviously need to sort out arrangements for where their children will live and what time the children will spend with each parent. Hopefully, they will be able to sort out these arrangements by agreement, but if that is not possible then they may need to ask the court to sort out the arrangements for them. This is done by applying to the court for a child arrangements order.
The power of the court to make child arrangements orders is set out in the Children Act 1989. The Act defines a child arrangements order as “an order regulating arrangements relating to any of the following—
(b) when a child is to live, spend time or otherwise have contact with any person”.
So the order will essentially set out what time the child will spend with each parent.
The order will generally last until the child reaches the age of sixteen.
Note that there is no particular distinction between ‘living’, ‘spending time’ or ‘having contact’ with a parent. Thus the order can be anything from the child spending equal time with each parent, to the child living with one parent and just having occasional contact with the other parent, or even having no contact at all.
And contact can be visiting or staying, direct and/or indirect, unsupervised or supervised.
‘Staying contact’ refers to contact whereby the child stays with that parent overnight, whereas ‘visiting contact’ refers to contact during the daytime, with the child returning to the other parent at night time.
‘Direct contact’ is where the child actually sees that parent, whereas ‘indirect contact’ refers to contact via indirect means, such as letter, telephone, email, text message, and so on. Note that contact can be both direct and indirect, with the child having indirect contact in between direct contact visits.
Lastly, supervised contact is where there are concerns over the parent having direct contact with the child, so the contact visits are supervised by someone trustworthy, for example a relative, or a supervisor at a child contact centre.
So now that we know what a child arrangements order is, the next question is: how does the court decide what order to make?
The overriding principle is that the child’s welfare is be the court’s ‘paramount consideration’. In other words, the court’s decision will be what it considers is best for the welfare of the child.
The court presumes it’s best for the child’s welfare that both parents are involved, unless proven otherwise.
To determine the child’s welfare, the court considers a ‘welfare checklist,’ prioritizing factors crucial for their best interests. These factors include:
1. The ascertainable wishes and feelings of the child concerned, considered in the light of the child’s age and understanding. Thus, generally speaking, the older the child the greater weight the court will give to the child’s wishes. And there can come a point with an older child when their wishes will actually determine the outcome.
2. The child’s physical, emotional and educational needs. It may be that the child has some special needs, and that one of the parents is best suited to meet those needs.
3. The likely effect on the child of any change in their circumstances. Thus, for example, if the child is living with one parent and the court is considering making an order that they should move to live with the other parent then obviously that move court have a serious effect (good or bad) upon the child.
4. The child’s age, sex, background and any of their characteristics which the court considers relevant. These days the sex of the child is less likely to be relevant to the outcome of the case, but such things as their religious beliefs and particular interests could be.
5. Any harm which the child has suffered, or is at risk of suffering. Obviously, this would have a very significant bearing upon the outcome.
6. Lastly, how capable each of the parents is of meeting the child’s needs. This will cover not just parenting skills, but also practicalities such as work commitments, which obviously could have a bearing on the capability of the parent to meet the child’s needs.
For further information on how we can help, please see our Child Arrangements page.
Walker Family Law is an award-winning family law practice, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration.
We wrote here back in September 2022 about the scourge of delay in court proceedings concerning children, with particular reference to private law proceedings between parents regarding arrangements for their children.
Sadly, the latest statistics show that the scourge of delay in child proceedings, (and in private law children proceedings and public law children proceedings) (i.e. proceedings involving the local authority)) has not gone away.
In fact, the problem in relation to private law proceedings has hardly improved at all.
In December the Ministry of Justice published its latest quarterly statistics for the Family Court, for the period July to September 2023. The statistics showed that in that period it took on average 45 weeks for private law cases to reach a final order, i.e. case closure.
In September 2022 we reported that such cases were taking an average of 46 weeks to reach a final order. That was the highest value since 2014, when the quarterly Family Court statistics were first published.
The Law Society, the representative body for solicitors, warned that the statistics “show a growing crisis in the family justice system”.
Law Society president Nick Emmerson said: “There were more than 80,000 children caught up in the family backlogs last year. We are seeing similar numbers this year. It is unacceptable that thousands of children are waiting almost a year to find out who they will be living with long-term because of delays in the family court system.
“Delayed justice can cause significant harm to the wellbeing of both children and parents by preventing them from having the stability they need to thrive. Research shows that children involved in private law proceedings are more likely to experience depression and anxiety.”
The latest Family Court statistics did not include data for the timeliness of public law cases.
However, such data was included in the annual report and accounts of the Children and Family Court Advisory and Support Service (‘Cafcass’, which looks after the interests of children involved in family proceedings), which were published in December.
The report covers the year to March 2023, and shows that in the final quarter of that year (January to March 2023) the average length of public law care and supervision proceedings was 46 weeks, which was 10 weeks longer than reported for the same period in 2020.
It should of course be noted that the Children and Families Act 2014 introduced a requirement that public law proceedings should be completed within 26 weeks, a target that is clearly not being met in very many cases.
Cafcass says that delays “continue to have a negative impact on children”, and that: “Delay for children as a result of longer case durations is now the single most pressing issue for the family justice system.”
Cafcass reports that it has prioritised reducing delay, although an Ofsted inspection of Cafcass in January 2023 concluded that delayed proceedings in most instances are outside of Cafcass’ control, citing a range of reasons, including a lack of court time, constrained court administrative capacity and local authority delays.
Sadly, there is little that families involved in public law proceedings can do to reduce delay in their cases. As Ofsted indicated, the answer primarily lies with providing greater resources for courts and local authorities.
But whilst similar considerations apply regarding court resources in private law proceedings, parents involved in such proceedings are able to take steps to reduce delays.
For one thing they can ensure that they comply with the timetable set by the court, in particular for filing evidence.
But they can also avoid court proceedings entirely, by seeking an out of court solution, for example via family mediation, collaborative family law or arbitration. Resolving matters out of court will not only be quicker for them, but will also of course reduce the pressure on the court system for others.
For further information on how we can help, please see our Expertise pages.
It’s a simple question, but with a not quite so simple answer.
For the sake of this post we will assume that the parents have separated and that the children live mainly with one of the parents. We will call that parent the ‘parent with care’, or ‘PWC’, and the other parent the ‘non-resident parent’, or ‘NRP’ (these are terms that are no longer officially used, but they make it easier to explain what follows).
When the parents separate they will obviously need to sort out a child maintenance arrangement. Hopefully, they will be able to do this between themselves by agreement, but if not then they will need to have it sorted out for them.
Until the advent of state-arranged child support maintenance under the Child Support Act 1991, that meant the PWC applying to the court for a child maintenance order.
As we will see in a moment, the court still has the power to make child maintenance orders. However, the Act took away that power in the vast majority of cases, giving it instead to what is now the Child Maintenance Service (‘CMS’).
Accordingly, in most cases where the parents cannot agree a child maintenance arrangement they (usually the PWC) will have to ask the CMS to sort it out for them.
So how long does a CMS child maintenance arrangement last?
The answer to this is actually quite simple.
A CMS child maintenance arrangement lasts until the child attains the age of sixteen, or if they are in full-time education (up to and including A level or equivalent), until they attain the age of twenty. (It should be remembered that since 2013 the law has required that young people continue in education until the age of eighteen, unless they are in employment or training.)
But the end of a CMS child maintenance arrangement does not necessarily mean the end of the NRP’s liability to maintain the child.
What happens if, as is obviously often the case, the child goes into advanced (i.e. tertiary) education, or remains dependent beyond the age of twenty for some other reason? Can the NRP be required to pay maintenance for the child in such circumstances?
The answer is yes, but as the CMS no longer has jurisdiction the matter has to be dealt with by the court.
As mentioned above, the court still retains the power to make child maintenance orders, just as it did prior to the coming into force of the Child Support Act.
But the rules as to how long the maintenance lasts under an order are quite different to the rules as to how long a CMS maintenance arrangement lasts.
The starting-point is that a child maintenance order should not extend beyond the date of the child’s eighteenth birthday.
However, the court can order that the maintenance should continue beyond the child’s eighteenth birthday, if the child is still in full-time education, or if there are special circumstances, for example where the child remains dependent because they suffer from a disability.
The next question, then, is what is ‘full-time education’?
The answer to that depends on the court, but the court can include tertiary education up to degree level, including any gap year. Accordingly, a NRP could potentially be required to pay maintenance until the child is twenty-two years old.
In short, you will be liable to pay child maintenance until the child attains the age of sixteen, but could be liable all the while they are in full-time education, which can include tertiary education.
As we stated at the outset, hopefully separating parents will be able to sort out child maintenance arrangements by agreement, but if they do then they should also agree how long the maintenance should last, having regard to the above.
If you need help sorting out child maintenance arrangements, including how much should be paid, then you should seek expert legal advice.
For further information, please see the Child Arrangements page.
Please contact us if you require any further information
It is a sad fact that when separated parents fall out then each may make threats against the other.
One such threat, and unfortunately not an uncommon one, is that one parent will take their child from the other.
But when it comes to the question, can my ex take my child away from me? Ultimately, the decision of which parent a child should live with, is a matter for the family court to decide, rather than the parents.
Of course, one parent may attempt to take the law into their own hands, so we will examine here two scenarios: where one parent seeks to take the child from the other through the courts, and where they try to do so without a court order.
(Note that, for simplicity, we use here the term ‘residence’, to indicate with whom the child will reside, or spend most of their time. Residence is, in fact, an old term, replaced by child arrangements orders that state with whom the child should live.)
Obviously, it is usually the case that when parents separate their child will reside primarily with one of the parents.
And obviously the other parent may think that the child will be better off residing with them.
In such a situation, the proper course for the other parent is to apply for a child arrangements order, stating that the child should live with them, not the other parent.
When deciding what order to make the court will consider what is best for the welfare of the child.
And to determine what is best for the welfare of the child the court will consider a number of factors, including:
In short, when it comes to the question, can my ex take my child away from me? If the court decides that your child will be better off living with your ex then, yes, it can order that the child be taken from you. However, even then the court would normally expect that you have regular contact with your child.
Sometimes, as we have said, a ‘non-resident’ parent may seek to take the law into their own hands, by taking the child from the other parent, or perhaps by refusing to return the child to the other parent after contact.
What should the parent with whom the child lived do in such a situation (assuming they think the child should live with them)?
The answer is to make an urgent application to the family court for an order that the child be returned to them.
And such an application will be determined by the court in exactly the same way: by reference to what is best for the welfare of the child.
And as mentioned above, one of the factors that the court will specifically consider is the likely effect on the child of any change in his or her circumstances. Accordingly if, as may often be the case, a sudden move from one parent to the other is considered to be bad for the child’s welfare, then the court may well order that the child be returned to the parent with whom they were living.
Whether the other parent has taken your child from you or has applied to the court for an order that your child live with them, you should take urgent legal advice. For more information, see our Child Law Solicitors page. In the event that social services are involved in your case, please see our Child Law Involving Social Services page. To contact a member of the team, please visit our Contact Us page.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child law, and arbitration.
Modern families, as we all know, come in all shapes and sizes. And the different types of family makeup can raise issues that can be of considerable importance in a family law context.
One such family type is what is commonly referred to as the ‘blended family’.
But what exactly is a blended family, and what issues can it raise?
A blended family is, as the name suggests, a blend of two families, a sort of mix of two other common family types: the traditional family (two parents and the child or children they have had together) and a single-parent family, which consists of one parent and their child or children.
Obviously, a single parent may enter a new relationship, and form a mixed family with their new partner. We then have what is commonly known as a stepfamily, with the new partner being a stepparent to the child or children.
But what if the parties then have children of their own? Then we have a blended family: a combination of a traditional family and a stepfamily.
To use the Cambridge Dictionary definition, a blended family is “a family that consists of two adults, the child or children that they have had together, and one or more children that they have had with previous partners”.
Note that the definition does not require that the two adults be married to one another – they just have to be partners.
So what are the issues that can be raised by blended families?
The issues of course arise from the fact that the step-children have ‘another parent’, with whom they don’t live (at least not all of the time): their natural mother or father.
Obviously, those children should normally spend time with both of their natural parents.
But then that means that they will not be spending that time with their half-brothers or sisters.
And this can be where the issues can arise: they may become conflicted between spending time with their blended family and spending time with their other (natural) parent.
This can be particularly hard for them if they are especially close to their step-siblings, or if the step-siblings are doing something of particular interest, that they don’t want to miss out on.
And remember, the ascertainable wishes of the children should be considered when sorting out arrangements for children – this can be especially relevant with older children.
Ideally, such issues should be dealt with by the natural parents with care and sympathy, and resolved by agreement if possible. Only after every reasonable effort has been made to resolve such issues by agreement (including the possible use of mediation, if appropriate) should the family court be asked to decide the matter.
If a blended family considers itself to be a unit then the parents may feel it appropriate to take steps to fully assimilate the step-children into the family.
This raises at least two possibilities: changing the step-children’s surname to match any new family name (where they still have the surname of the absent parent), and the more radical possibility of the step-parent adopting the step-children, thereby cutting the other natural parent out of their lives.
Either course of action will involve court proceedings (save in the unlikely event that the absent parent agrees to a change of name), and the court will, as always, be guided by whatever it considers to be best for the welfare of the children.
Generally speaking, however, the courts nowadays do not consider it as important as it once was that all children in a family share the same surname, and the increase in blended families is part of the reason for that (in 2016 the Court of Appeal commented that “the increase in blended families means that it is … no longer the universal norm for a family living together all to share the same surname”).
As to adoption, that is obviously a very serious step, and is only likely to be considered to be in the child’s best interests if their relationship with the absent parent has completely broken down.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce, child law, and arbitration. For expert advice, please contact the team.
When a local authority commences care proceedings in relation to a child it will normally of course notify both of the child’s parents. The parents have the right to oppose the making of a care order, and obviously they need to be told about the proceedings in order to exercise that right.
But what if the parents are separated, or perhaps have never even lived together at all? This is not at all unusual, with the child most often residing with the mother. Does the father in such a situation still have to be informed of the care proceedings?
This question recently arose in a case that went to the Court of Appeal, but before we come to that, a quick summary of the law.
The position of the father in such a case depends upon whether he has parental responsibility for the child.
The father will have parental responsibility for the child if he was married to the child’s mother, if he was registered as the father on the child’s birth certificate, if he obtained it with the mother’s agreement, or if a court granted it to him.
Clearly, this means that many fathers in care cases will have parental responsibility for the child, but still many will not, especially where they never lived with the mother.
If the father does have parental responsibility for the child then the position regarding care proceedings is quite straightforward: he is automatically made a party to the proceedings. He is therefore entitled to respond to the proceedings and, if he wishes, oppose the making of a care order.
Here the situation is slightly different.
The father is not automatically made a party to the proceedings. Instead, the local authority must give notice of the proceedings to anyone it believes to be the father of the child, even if he does not have parental responsibility.
The father may then choose whether he wishes to take part in the proceedings.
Whether or not the father has parental responsibility, the local authority, or even the mother, may apply to the court for an order that service of the proceedings upon the father be dispensed with, on the basis that this is necessary to safeguard the welfare of the mother and/or the child.
Whether or not the court grants such an application depends upon the circumstances of the case. However, it is normally considered to be in the child’s interests that the father be notified. The mere fact, for example, that the father has had nothing to do with the child, or even that he is not aware of the child’s existence, does not necessarily mean that the application will be granted.
In short, the circumstances must be exceptional for the court to grant the application.
This was demonstrated in the recent Court of Appeal case.
The issue in the case concerned a four month-old child, who the mother claimed was “conceived during one of several incidents of non-consensual sexual intercourse”. The mother said that when he became aware of the pregnancy the father, who was married to another woman, was abusive and threatening towards her, demanding that she have a termination, failing which he would kill the child.
Care proceedings began in relation to the child, and the mother applied to the court for an order that the father should not be served with notice of the proceedings.
However, notwithstanding the threats made by the father, the judge did not find that this was an exceptional case, and therefore refused to grant the application, even though the father had not had anything to do with the child.
The mother appealed, to the Court of Appeal.
The Court of Appeal found that the judge was entitled to find that the risk that the father posed to the mother could be managed, and that there were potential benefits to the child from the father taking part in the proceedings. Accordingly, the mother’s appeal was dismissed.
