Children

Children

Contents

Who are children of the family?

'Children of the family' is a legal term and includes:

  • Any child of both you and your spouse or civil partner.
  • Any child who is the biological, adopted or legal child of either of you or your spouse or civil partner, but has been treated as a child of the family by the other one of you.
  • Any child who is not the biological, adopted or legal child of either of you, but has been treated by you both as a child of the family.

A foster child cannot be a child of the family.

A 'qualifying' child of the family is a child of the family who is:

  • Under 16; or
  • Aged 16 or 17 and still at college or school or undergoing full time training for a vocation or profession.

Who are the parents?

Other than being a parent of biological and adopted children, you can sometimes be legally regarded as a parent of a child not naturally born to or adopted by you.

If a woman is in a marriage or civil partnership at the time of conceiving by means of artificial insemination, then her spouse or civil partner will be regarded as a parent of the child as well, unless it is shown that the spouse or civil partner did not consent to the procedure.

Spouses and civil partners can also apply to court for an order that a child is to be treated in law as their child. You can make this application under the following conditions:

  • The gametes of at least one of the spouses or civil partners were used to in the creation of the embryo
  • The application is (with some exceptions) made within 6 months of the child's birth
  • At the time of making the application the child's home is with the spouses or civil partners
  • Either or both the spouses or civil partners are domiciled in the United Kingdom, Channel Islands or the Isle of Man
  • At the time of the making of the order, both spouses or civil partners are 18 or over
  • Anyone else who may be regarded as a parent of the child freely agrees and fully understands (this won't apply if such people cannot be found or are incapable of giving consent)
  • The court is satisfied that there was no exchange of money or other benefit relating to the child or the order sought

Parental responsibility

The term 'parental responsibility' refers to the rights, duties, powers, responsibilities and authority normally associated with parents. Parental responsibility includes the right to decide the child's home, school, medical treatment, guardian, name etc. However, it also includes the duty and responsibility to ensure, amongst other things, that the child is cared for and provided with a home.

If the mother of the child is not married to the father at the time of the child's birth, then only the mother will have automatic parental responsibility. An unmarried father will only have parental responsibility if he has obtained it in one of the following ways:

  • By jointly registering the birth of the child with the mother;
  • By entering into a parental responsibility agreement with the mother; or
  • By obtaining a parental responsibility order from the court.

Living with the mother, even for a long time, does not give an unmarried father parental responsibility. Also, if the parents are not married, parental responsibility does not always pass to the natural father if the mother dies.

Stepparents can gain parental responsibility through a formal agreement or court order. A stepparent or other individual (e.g. grandparent) will also gain parental responsibility where they get a residence order. This states where a child will live and gives them parental responsibility until the child is 16. Civil partners are also able to gain parental responsibility by formal agreement or court order if they are not already regarded as parents.

Maintenance for the children

Where to get child maintenance orders

The statutory child maintenance services

The Child Maintenance Service (CMS) manages all new applications for a statutory child maintenance arrangement.

The Child Support Agency accepts no new applications, but still manages statutory arrangements set up before December 2013. All these child maintenance arrangements will end by 2017. New arrangements will then have to be made either by setting up a family-based arrangement or by making use of the CMS.

You, as parent with care of the children, can use the CMS to get child maintenance from the parent who does not live with the child (the 'non-resident parent'). It can calculate the child maintenance that the non-resident parent should pay. You can also ask the CMS to enforce and collect payment on your behalf. This is the 'Collect and Pay' system of the CMS. The non-resident parent will pay the maintenance to the CMS, which will pay it over to you. However, an application fee and ongoing collection charges apply when you use the service.

Before approaching the CMS, you should first try to reach a family-based arrangement. A family-based arrangement is a child maintenance agreement that you have negotiated directly with the non-resident parent. You can use the Child Maintenance Calculator to calculate the amount that the non-resident parent can be expected to pay.

You can also use the Government's free 'Direct Pay' online system, which will work out the amount that the non-resident parent should pay. Once you've agreed the payments directly with the other parent, you can set up the regular payments on the Direct Pay system. The payments are made directly to you, and the Direct Pay system will keep track of all payments made. The CMS will only get involved if payments are missed. There are also no ongoing charges for this service.

More information on a family-based agreement is available from the Child Maintenance Options (CMO) website. The CMS will also first refer you to the CMO before it takes on your case.

The CMS can deal with an application for child maintenance if:

  • The child is not a stepchild;
  • The child has at least one non-resident parent;
  • The child is either under 16, or between 16 and 20 and in full-time non-advanced (i.e. no higher than A-level) education; and
  • The child, the receiving parent and the non-resident parent all live in the UK.

The only exception to the last rule is if the non-resident parent is employed by the civil service, diplomatic service, UK armed forces, or by a company registered in the UK.

The court

The court can make periodical payments orders for the maintenance of a child only if:

  • you and your spouse or civil partner have made a written agreement about the child maintenance;
  • one of you is not habitually resident in the UK;
  • the child is 16 or over and is in full-time education or training for a trade, profession, or vocation;
  • the child is a stepchild;
  • it is for school-fee payments;
  • it is to be made on top of the maximum amount calculated by the CSA or CMS; *it is to meet expenses arising from a child's disability; or
  • it is to meet the expenses incurred for the child's education or training for work;

When making an application for a financial order in connection with divorce or dissolution proceedings, the court can also make lump sum and/or transfer of property orders for children.

How child maintenance is determined

A formula is used to calculate the amount of child support maintenance. There is a Gov.uk guide on how the CMS calculates the child maintenance.

You can use the online Child Maintenance Calculator to work out your own estimate or you can contact the CMO for further help.

Where the court is approached for a maintenance order, it will consider the following factors:

  • The financial needs of the child
  • Any physical or mental disability of the child
  • The child's education and training
  • Any property, financial resources and earning capacity of the child
  • The parties' financial resources, needs, obligations and responsibilities, the standard of living and any physical or mental disabilities

If the application has been made for a stepchild or stepchildren, the court will also consider:

  • The liability of any other person to maintain the child
  • Whether the paying party assumed any responsibility for the child, the extent of the responsibility, and for how long
  • Whether or not the responsibilities were undertaken knowing that the child was not their own

Child arrangements

Child arrangements include issues such as where the children will live and when they will see and talk with the parent they do not live with.

The court does not consider the arrangements for children during the divorce or dissolution proceedings. Parents are encouraged to reach agreement with each other regarding the arrangements for the children. If it is not possible to reach an agreement you will be expected to attend a Mediation Information and Assessment Meeting (MIAM) to consider whether mediation will be possible. Only if mediation is unsuccessful or not regarded as an option, will you be able to make a separate application to court for a child arrangements order.

For further information on family mediation to reach a parenting plan, and what to do if you have to apply to court, see this HMCTS guide and the Family mediation council website.

If you do in the end have to apply to court, the following orders are available:

Child arrangements order:

This order determines where and with whom the child will live, and who the child will spend time with or otherwise have contact with.

Prohibited steps orders

This prevents someone from doing something specified in the order without getting the court's permission first. For example, you may want to prevent your spouse or civil partner from taking your child abroad without your consent.

Specific issues orders

If you and your spouse or civil partner cannot agree on a particular issue about the child, such as schooling, medical treatment and religion, this order sets out precisely how it should be handled.