ENGLAND & WALES Law and Practice Contributed by: Alex Carruthers, Oliver Heeks and Sian Brooks, Hughes Fowler Carruthers
• a state of which the child is a national; • a state in which property of the child is located; • a state whose authorities are seised of an application for divorce or legal separation of the child’s parents or for annulment of their marriage; or • a state with which the child has a substantial connection. The nationality of a child will therefore be a rel - evant factor in determining which jurisdiction is suitable to hear an application, as will factors establishing a substantial connection of a child to a country (including domicile). Habitual resi - dence, however, is the primary factor that will decide the issue of jurisdiction in most interna - tional cases. 3.2 Living/Contact Arrangements and Child Maintenance If the parents do not agree on a child’s living arrangements and the time/contact the child will have with each parent, either parent can apply to the court under Section 8 of the CA 1989 for a child arrangements order (note the MIAM requirement for most cases). The court will make a determination of future child arrangements on an analysis of the best interests of the child. The factors relevant to the court’s determination are set out in Section 1(3) of the CA 1989 and are: • the ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding); • their physical, emotional and educational needs; • the likely effect on them of any change in their circumstances; • their age, sex, background and any char - acteristics of theirs that the court considers relevant;
• any harm that they have suffered or are at risk of suffering; • how capable each of their parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs; and • the range of powers available to the court under the CA 1989 in the proceedings in question. This is not an exhaustive list and the court will take a holistic approach and make a decision based on the child’s best interests. Custody and Parental Responsibility In England and Wales, a parent’s decision-mak - ing power is defined as “all the rights, duties, powers, responsibilities and authority [that] by law a parent of a child has in relation to the child and his property” (Section 3(1) of the CA 1989). This authority is known as “parental responsibil - ity” and empowers a person to make decisions in relation to, among other things, a child’s edu - cation and healthcare. Parental responsibility is acquired automatically by a child’s father if they are: • married to the child’s mother; or • as of 2 December 2019, a civil partner of the child’s mother at the time of birth. Alternatively, parental responsibility can be acquired by unmarried fathers in the following ways: • by subsequently marrying – or, as of 2 December 2019, becoming a civil partner of – the child’s mother; • by being registered as the child’s father on the child’s birth certificate on or after 1 December 2003;
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