When two people who are married petition for a decree of divorce or judicial separation, the most important concern of the court is the welfare of the children of the family.

The court will require to be satisfied that the arrangements are either suitable or the best that can be achieved under the circumstances.

Other than in exceptional circumstances, the court will not allow either party to apply for a decree of divorce to be made absolute until it is either satisfied with the arrangements or is of the opinion that they are the best in the circumstances. In addition, a similar provision will apply before the court will allow the decree of judicial separation to be pronounced.

The court sees its role as protecting the children. It will not allow the parents to finalise their divorce, without any regard for the needs of the children.

Parental responsibility

Parental responsibility refers to the rights and duties to take the important decisions in a child's life. The idea behind the word responsibility is to show that the parental power to control a child is not for the benefit of the parent but for the child.

The important decisions in the child's life include:

• Education
• Religion
• Medical care

Parental responsibility includes taking such day-to-day decisions for a child such as:

• Nutrition
• Recreation
• Outings

It is important to bear in mind that a child will gradually become mature enough to take decisions themselves.

Who has parental responsibility?

Married parents will have joint parental responsibility for their children. If parents are not married, only the mother acquires parental responsibility on birth; however, if the birth has taken place after 1 December 2003 (15 April 2002 in Northern Ireland and 4 May 2004 in Scotland) and the father is named on the birth certificate, he will instantly have parental responsibility. Alternatively, the father may acquire parental responsibility by:

• Entering into a parental responsibility agreement with the mother (England & Wales only)
• Applying to the court for a parental responsibility order
• Being appointed guardian upon the death of the mother
• Obtaining a residence order from the court
• Marrying the mother

If a care order is made, the local authority will acquire parental responsibility. In addition, anyone who is granted a residence order will acquire parental responsibility. If the child is made a ward of court, the court will acquire parental responsibility.

The fact that another person acquires parental responsibility does not automatically mean that anyone who had it before loses parental responsibility, for example, if on divorce a residence order is made in favour of the grandparent. This will mean that the child's mother, father, and grandparent will all have parental responsibility.

Parents may lose the day-to-day responsibility for the child when they do not live with them but retain all other responsibilities.

A parent will lose parental responsibility on:

• Their death
• The child's adoption

An adoption order automatically extinguishes any pre-existing parental responsibility.

If the court had granted an unmarried father parental responsibility, the court may end it. If a person has acquired parental responsibility by having a residence order for a child and the residence order ends, they will cease to have parental responsibility.

The acquisition and loss of parental responsibility in the case of unmarried fathers raises potential issues of discrimination under the Human Rights Act 1998. However, in a decided case, the European Court of Human Rights accepted that discrimination between married and unmarried fathers could be justified. The position of unmarried fathers is to improve following the Government's stated intention to amend the law to give parental responsibility to all unmarried fathers who register the birth of their children.

Even though several people may have parental responsibility for a child, it is possible for each to act alone with no duty to consult anyone. One parent can determine questions such as medical treatment, religion, and education without consulting the other. The only way to challenge a decision is to make an application to court for a specific issue order or a prohibited steps order.

If a child is being adopted or taken out of the UK, there are specific provisions that may require both parents' consent or permission from the court.

It is not possible to transfer or surrender parental responsibility. Parents may delegate responsibility for a child on a temporary basis. This will occur when a child goes to school or is with a child minder. Temporary carers do not acquire parental responsibility but may do what is reasonable for the purpose of safeguarding or promoting the child's welfare. This could cover emergency medical treatment for the child if needed when the parent is absent.

Differences in Scotland

The Children's Act 1989 does not apply in Scotland, instead this area of the law is governed by the Children (Scotland) Act 1995. Scottish parents have various legal responsibilities towards children. These include deciding where they live, controlling their upbringing, acting on their behalf in legal transactions and having contact with them. When the child reaches 16 these responsibilities and rights cease. Children over 16 can make their own decisions. Parental rights and responsibilities are shared while the parents are living together; they cannot veto each other and disputes can be settled by the courts.

During a divorce, the responsibilities and rights of parents and children may be relocated. If cooperation exists, then orders are not necessary. If there is no cooperation, the parent who is to look after the children will need to apply for a residence order. This gives the person who benefits from the order, the right to have the children living with them. The other parent retains all rights except this right of residence.

If the parents can't decide who the children will live with, this decision will be made on welfare grounds. Children's views on this may be taken into account when making this decision. If the children are 12 or above, their view is presumed valid, and courts are reluctant to go against children over 14 or 15 who express a view. Children under 12 can express a view, but these are not conclusive.

If informal arrangements for contact break down, the court may order these arrangements.

Differences in Northern Ireland

With the introduction of the Children (Northern Ireland) Order 1995 ("the 1995 Order"), legislation relating to children has been brought in line with the rest of the UK and a concept of parental responsibility has been created.

Courts in Northern Ireland can make orders with respect to children in family proceedings under Article 8 of the 1995 Order such as residence, contact, prohibited steps and specific issue. A residence order settles the issue of which parent the children are to live with. The other parent is normally issued with a contact order allowing the children to visit or stay.

The 1995 Order explicitly states that the courts should consider the child's welfare to be of paramount importance.

Child welfare & the court

In any divorce or judicial separation proceeding, the prime concern of the court is the welfare of any child of the family. This will include concern over their upbringing. It may also include managing any property or claim that the child may have.

The court will follow a checklist. The list known as the 'Welfare Checklist' is as follows:

• The wishes of the child insofar as they can be determined taking into account the child's age and understanding of the situation
• The physical, emotional, and educational needs of the child
• The effect of a change of circumstances upon the child
• The age, sex, background, and any other relevant characteristics of the child
• Any harm that the child has suffered or is at risk of suffering
• Whether the parent or any other person is capable of meeting the child's needs
• The range of powers available to the court

One of the intentions of this checklist is to encourage a consistent approach in the decisions taken by courts. The list is not exhaustive and any relevant factors can be considered. The judge must look at every aspect of a case.

The court will not intervene and make an order, unless it can be shown that there is a positive need and benefit to the child in doing so. Orders should not be made automatically. If the parties agree on where the child is to live after the divorce and when the other parent should see them, no court order should be made. The court will have to make an order if the parents are in dispute from the outset or if there is a real danger that one parent may abduct the child.

Court orders for children

There are two types of proceeding involving children. The first type involves the local authority and is known as public law proceedings. The second type does not involve the local authority and is known as private law proceedings.

In public law proceedings, the court may make the following orders:

• A care order
• A supervision order
• In private law proceedings, the court may make the following types of orders:
• A residence order
• A prohibited steps order
• A contact order
• A specific issue order

In private law proceedings, there will not be any concern by the local authority for the care of the child. Private law proceedings determine issues between the parents of the child and other interested people. Other interested people can include grandparents and step parents.

Residence order

If the court makes a residence order, it will state with whom the child will live. Following a divorce, parents will share parental responsibility and a residence order will state where a child will live.

A residence order can be made in favour of non-parents. If this is done, the non-parent will automatically have parental responsibility. It will continue for so long as the residence order is in force. This parental responsibility is limited in two ways by the non-parent not being able:

• To agree to an adoption order
• To appoint a guardian

A residence order can be made in favour of two or more people or in favour of people who do not all live together. The order can specify the time the child will spend in the different home. The order may say that a child is to live with one parent during term-time and with another during holidays.

Only if the courts feel that it is in the welfare of the child will a split residence order be made. This is rare because it is generally felt that it is better for a child to live with one parent. The court is given wide powers to attach directions, conditions, or provisions to a residence order.

The court may make a direction as to where the child is to be educated, impose a ban on removing the child from the country, or direct that the non-resident parent be informed if the child requires medical treatment. The latter could be important if the parent with whom the child is living has religious objections to blood transfusions.

The residence order will provide that no person can cause the child to be known by a new surname without either the written consent of every person who has parental responsibility or the court gives permission.

If it is in the child's best interest to change the name, the court will give permission. Effectively unless there are specific and particular circumstances to justify a change of name, the presumption will be in favour of the status quo.

While a residence order is in force, no one may remove the child from the UK without the written consent of every person with parental responsibility or the court gives permission. However, the person in whose favour the residence order is made to take the child out of the UK for periods of less than one month without consent.

The parent without the residence order needs to obtain permission every time they want to take the child abroad.

If there is no residence order, either parent can take the child abroad without any restriction or the need for consent. However, the parent proposing the trip could be prevented from going by the other parent obtaining a prohibited steps or specific issue order forbidding the child being taken abroad.

However, if the permission of the other parent or the court is not obtained, the parent taking the child may commit a criminal offence. If a parent needs to apply to court to seek permission to take a child abroad, the court will base its decision on what is in the best interest of the child.

It will seldom be difficult to persuade the court that a holiday abroad is in the best interest of the child. The court would not allow the child to go abroad if it is a cover for abduction or the parent who has custody proposes to immigrate.

If the court is satisfied that the future of the child inevitably lies with one parent and that the proposals for the child's living arrangements and upbringing are realistic and sensible, the court may allow the child to live permanently abroad.

Prohibited steps order

This is an order of the court that prevents a parent from taking a step that is specified in the order. The court cannot make a prohibited steps order with a view to achieving a result that could be achieved by a residence or contact order.

The court cannot grant a prohibited steps order stopping a child living with anyone other than a parent. This, in effect, would be a residence order.

It can, however, be used to restrict anyone from taking the child out of the United Kingdom. If no residence order is in force, a prohibited steps order may be used to prohibit the removal of a child from the United Kingdom or preventing their name being changed.

Contact order

A contact order is an order of the court requiring that the person with whom the child lives or is to live allows them to visit or stay with another person. The person will be named in the order.

A contact order can give for example:

• Actual physical contact
• Contact by letter
• Contact by telephone
• Contact by email
• A video of the child
• Provision of photographs of the child

The amount of contact will be specified in the order. It may for example order:

• Weekend visits
• Holidays
• Reasonable contact

Reasonable contact will be the arrangements that the parents are able to make between themselves.

A contact order could be made to prevent someone from seeing the child. However, a more preferable way of achieving this would be by a prohibited steps order.

Since the order can be made in favour of a parent or any other person, it could enable contact to be maintained with the extended family, or other friends of the child.

A contact order can contain conditions and directions. These could be used to build up contact gradually between a young child and a parent who had not seen the child for a while. There could be a direction for supervised contact to protect the child. This could take place at the local child contact centre.

Contact centres have been set up all over the country to provide for an opportunity and setting for contact to take place.

The court's approach is that the child has a right to know both parents. The starting point is that a child should have contact with the absent parent.

The court will consider all the circumstances. If the conduct of one of the parents makes contact very difficult for the child, the court may decide that it is not in the best interests of the child to see the absent parent.

There are situations where the conduct of one parent, stepparent, or other family member makes contact between the child and the other parent impossible. The situation may be extreme enough to persuade the court not to make a contact order because it would cause damage to the emotional welfare and stability of the child. This can be very hard on the absent parent who is not allowed to see their child.

If one parent deliberately alienates a child towards the other parent, the court may feel that it is inappropriate for the child to continue to live with that parent. The court could find that if the child were to live with the other parent, the child would be able to retain contact with both parents.

Specific Issue Order

A Specific Issue Order is an order of the court giving directions on a specific point. It may arise in connection with any aspect of parental responsibility for a child.

The order does not give a parent a general power. It makes a decision on one issue over which there is a disagreement. It could be used to decide for example:

• Which school a child should attend
• Whether a child should have a particular operation or course of medical treatment
• Circumcision
• The religion of a child

Non-parents can use it. The local authority, doctor, hospital, or relation may wish to resolve issues involving the child. This could include an issue over the following:

• An abortion
• Life saving medical treatment

Child abduction

If a person has removed a child from the United Kingdom without parental responsibility for the child or their permission from a person with parental responsibility, the person removing the child will have committed a criminal offence.

Under The Hague Convention on International Child Abduction, if a child is taken to a country that has signed the convention, it is possible to make a request to that country to return the child. Provided the request is made within one year of the removal, the law enforcement agency in the country will try to find the child and return them. After this time the child will still be returned, unless they are settled in their new environment.

Under the European Convention on Recognition and Enforcement of Custody Decisions, a court of one signatory will enforce the decision made by a court of another signatory country as to where a child lives.

However, under this Convention there are certain grounds on which the court can decide that it is in the child's best interest to remain in the country to which they have been taken.

'Reunite' and the National Council for Abducted Children are two organisations that provide support and assistance for those whose children have been taken to another country against a court order.

Parents who have a fear that their child will be abducted by the other parent should take certain practical steps. These include telling the school to ensure that someone who will abduct the child does not take them. The child's passport must be kept in a safe place.

In some cases refusing to allow unsupervised contact may be the only solution to prevent abduction. Finally, it is always important to ensure that the telephone number of the police station is kept at hand.

Differences in Scotland

In Scotland, a parent only commits a criminal offence by taking a child out of the UK if:

• The other parent has been awarded custody, or has a residence order and has not agreed to the child's removal
• The court has interdicted removal

If your spouse looks likely to takes the children outside the UK, a residence order or an interdict should be applied for.

Stopping abduction

If the parents of a child have separated and the child is not returned to the parent with whom they live following an agreed visit, the other parent may have abducted the child.

If the court has made a residence order, it will contain a provision that prevents either parent from taking the child out of England and Wales without the other's permission. A residence order is an order that the child live with one parent. However, if the parent with whom the child lives wishes to take the child out of England and Wales for a holiday of up to 28 days, the other parent's permission is not required.

It is an offence for a person without parental responsibility for a child to take that child out of the United Kingdom without agreement of a person with parental responsibility or permission of the court. Parental responsibility is the rights and duties of a parent. The mother automatically has them. If the father is married to the mother, he will also automatically have them. If he is not married to the mother, he may acquire parental responsibility by entering a parental responsibility agreement with the mother that is registered with the court. If the mother is not willing to enter into a parental responsibility agreement, he may apply to the court for a parental responsibility order.

The police operate a 'port alert' procedure. This is designed to physically prevent a child from being removed from the United Kingdom. It will go into operation if there is a real danger that a child will be removed. If the child is below 16 years old, there is no need for a residence order to be in force before the police can act. Application must be made to the local police station. A recent photograph of the child and any other details should be given to the police. Under this procedure the police have the power to arrest without warrant.

If the child does not have a passport, it is possible for a parent or other interested person to tell to the Passport Department of the Home Office that a passport should not be issued for a child without consent or permission from the court.

If the child already has a passport or is included on another's passport, the court can order that the passport be returned to the Passport Office. However, the court will only make this order if there is already an order forbidding the child from leaving the United Kingdom. The court will sometimes order that a passport be given to a solicitor so that they can look after it.