ENGLAND & WALES Law and Practice Contributed by: Alex Carruthers, Oliver Heeks and Sian Brooks, Hughes Fowler Carruthers
• by entering into a parental responsibility agreement with the child’s mother; • by obtaining a parental responsibility order from the court, so long as the child is under 18; or • by being formally appointed as the child’s guardian by the mother or by the court. If the father is named as the parent with whom the child is to live, a parental responsibility order must be made. Such an order need only be con - sidered if the father is named as someone with whom the child is to spend time. Therefore, following the breakdown of a mar - riage or relationship, the parties will retain their parental responsibility (save if there is an order from the court to remove a party’s parental responsibility). Important decisions relating to a child must have the consent of all persons with parental responsibility. This would include mat - ters such as schooling and medical decisions. If parties cannot agree, then they must make an application to court. If, however, one parent obtains a “lives with” child arrangements order during Children Act proceedings, they may take the child out of the jurisdiction for up to 28 days without the other parent’s consent. The court order in the Chil - dren Act proceedings can curtail the exercise of a parent’s parental responsibility by placing limits on what a parent can do with a child. Restrictions on the Court’s Ability A “lives with”order will be legally binding until the child reaches the age of 18. Any contact arrangements laid out in a child arrangements order are usually legally binding until the child reaches the age of 16 (Section 91(10) of the CA 1989). Between the ages of 16 and 18, it will be up to the child to decide how much contact
they would like to have with the parent they do not live with, and the court will be reluctant to interfere. This reflects the criteria in Section 1(3) of the CA 1989, as the ascertainable wishes and feelings of a child aged 16 carry more weight than they do for a young child. Child Maintenance Child maintenance is governed by the Child Support Act 1991 (the “CSA 1991”). The CSA 1991 has been extensively amended by four later substantial sets of legislation: the Child Support Act 1995, the Social Security Act 1998, the Child Support, Pensions and Social Security Act 2000, and the Child Maintenance and Other Payments Act 2008. The CSA 1991 stipulates in Section 1 that each parent of a “qualifying child” is responsible for maintaining them. A child is a “qualifying child” if: • one of their parents is, in relation to them, an absent parent; or • both of their parents are, in relation to them, absent parents. There is thus a legal obligation on a non-resident parent to pay money to the resident parent. This can be arranged privately between the parents (if the amount is agreed) or through the CMS, which is a government body that calculates the payments due under the legislation. Under certain circumstances, mostly those that involve very high earners and where one party lives outside of the country, applications for child support can be make to the court. Child maintenance is normally calculated by the CMS, which utilises a six-step process to cal -
130 CHAMBERS.COM
Powered by FlippingBook