One of the most important things to consider when a couple separate or divorce is the effect it will have on their children. Rather than talking about the rights of parents, the law talks about the ‘parental responsibility’ for a child. For unmarried parents the mother will automatically gain parental responsibility. The father will also automatically gain parental responsibility if he is named on the child’s Birth Certificate. Otherwise the father will have to either enter into an agreement with the mother or apply to the Court to gain parental responsibility.

The law relating to children is governed by the Children Act 1989. The welfare of the child is the overriding principle. Any decisions taken by the Court are based on what the Court considers to be in the child or children’s best interests. The Court’s initial view is for no Orders to be made unless necessary in the hope that the parents can agree all children issues. This is known as the “no order” principle.

It is best if you and your partner can come to some private arrangement regarding your children. This means the Courts do not become involved and your children are protected from unnecessary upset. If you cannot reach a private agreement yourselves, the first step is to speak to your care proceedings solicitors. They may be able to suggest alternatives and to speak with your ex-partner’s solicitor and come to some agreement, again without involving the Courts directly. If this proves impossible, the Court can become involved and will make the decision based on the evidence they receive. The Court can decide both where the children live, and when and where the parents can have contact with their children.

The Children Act sets out the “Welfare Checklist” which the Court will take into account when making their decision. The Court can of course take into account all relevant facts and attach varying degrees of weight and importance to any of the factors in the Welfare Checklist according to the circumstances of each case.

The Welfare Checklist consists of the following:

• The ascertainable wishes and feelings of the child concerned considered in the light of his or her age and understanding.
• His or her physical, emotional and educational needs.
• The likely affect on him or her of any change in circumstances.
• His or her age, sex, background and any characteristics which the Court considers relevant.
• Any harm which the child has suffered or is at risk of suffering including violence and, for example, impairment suffered from seeing or hearing the ill-treatment of another child or parent.
• How capable each of the parents and any other person in relation to who the Court considers the question to be relevant, is, of meeting the child’s needs.