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Many children are now growing up living with either one or other of their parents and separation is affecting them at younger ages. It is important in all cases to make sure emotional harm is not caused to children by agreeing post-separation contact. If the parents of a child are not or have never been married to each other, it is possible that a father might not have Parental Responsibility for a child(ren) if he is not named on the child’s birth certificate. Parental Responsibility provides the same legal status to both parents. If a father does not hold Parental Responsibility, then it may be possible to gain Parental Responsibility by agreement.
Parental Responsibility does not automatically give parents a right to spend a fixed amount of time with their children or to vary the arrangements for their children without consideration as to how this will affect them. Parents are encouraged to agree arrangements for their children post separation so that the children spend quality time with both parents. Sometimes this is not possible due to differences of opinion in terms of how children’s time should be divided between the two households.
If you are the primary carer for your children after the breakdown of the relationship, you might encounter a number of difficulties with your ex-partner. Your ex-partner might remove the children from school without your knowledge or agreement; they might take the children to spend time with them, and later refuse to return them to you, or they might demand that you allow them to spend increasing amounts of time with the children, asserting their parental rights.
Equally you may feel that your ex-partner is preventing you, or your relatives, sufficient child access or you may seek joint custody. You may feel excluded from information about your children’s schooling, medical care or holiday plans. In circumstances such as these, you could consider making an application to the Family Court for an Article 8 Order under The Children (NI) Order 1995. There are four main types of Article 8 Order which are known as Residence, Contact, Prohibited Steps and Specific Issue Orders.
A Residence Order settles the arrangements to be made as to the person with whom the children should live. Residence Orders will be made until the children reach the age of 16, however, if circumstances change an application can be made to the court to vary any Order made. Residence Orders can also be made in favour of more than one person, for example, to reflect a shared care arrangement and in certain circumstances they can also be obtained in the first instance on an emergency basis without the Respondent being present.
A Contact Order requires the person with whom the children are living to allow them to visit or stay with the person named in the Order, or for that person and the children otherwise to have contact with each other. Contact Orders can stipulate not just the frequency and duration of contact, but can also address issues such as supervision of contact, venue of contact, holiday contact and other such specific issues where needed.
A Prohibited Steps Order directs that a parent cannot pursue a particular action or course of action without the consent of the Court; such as taking children out of the jurisdiction. Specific Issue Orders, like Prohibited Steps Orders, are designed to be made either on their own, or together with a Residence or Contact Order. It enables the Court to give directions to determine a specific issue which has arisen, or may arise, in connection with any aspect of parental responsibility for children, for example, the decision to change the children’s surname, choice of schools, religious upbringing, or medical treatment.
When considering applications of this nature, the Court’s main priority is the welfare of the children involved, and Judges will specifically direct their minds to questions such as; how capable are each of the children’s parents of meeting their physical, emotional and educational needs? What are the ascertainable wishes and feelings of the children? And, what is the likely effect on the children of a change in their circumstances? In applying the law, the Courts adopt a “No Order” principle in which it will only make orders when it is necessary in the best interests of the children, and therefore if parents can come to their own arrangements then an order will not be necessary.
Deciding to make an application to the Courts is not something to be taken lightly, and you may feel you need advice as to your other options before deciding how best to proceed. Instructing a Family Solicitor to deal with your separation issues does not mean a case is destined for Court. Many of our separation cases are resolved without the case ever going before a Judge or through mediation. Others settle quickly after Court proceedings are issued.
Cleaver Fulton Rankin recognise opportunities to negotiate, and to utilise those opportunities to achieve the best outcome for our clients. As Solicitors, it is our job to help you through the legal process as best we can. We believe that having access early on in the process to good information and resources is a key factor in how well you and your children will be able to manage this transition.
This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Family & Matrimonial Team at Cleaver Fulton Rankin for further advice or information.