When a marriage breaks down there are many things the couple has to think about, however, family law in England and Wales is predominantly concerned with the welfare of any children whose parents are going through a divorce. Consulting an experienced family law solicitor is, therefore, essential if there are any disputes involving children. 

The Children Act and parental responsibility in divorce

In October 1991, public and private law relating to children was simplified and streamlined with the establishment of the Children Act 1989. The Act saw sweeping changes to children issues by combining previous legislation into one statute. These included care and supervision orders and emergency protection orders from public law, and, from private law, residence and contact orders, and prohibited steps orders.

The Act introduced the concept of parental responsibility, defined in section 3(1) of the Act as "all rights, duties, powers responsibilities, and authority which by law a parent of a child has in relation to the child and his property".

Providing that no care order has been made for a child or children, a fundamental right of parental responsibility is the ability to decide where the children will live. However, the exercising of parental responsibility may be defined by mutual agreement of the parents or by order of the court.

A court may define the contact arrangements for children and the parent with responsibility would not then be permitted to carry out any action which was incompatible with the court order.

Who has parental responsibility?

Under the law of England and Wales the mother always has parental responsibility for her children and if the parents are married or the couple has jointly adopted the child, the father has identical parental responsibility and this continues after separation and divorce.

However, unmarried fathers do not automatically have parental responsibility unless they are registered, with the mother's consent, as the child's father on the birth certificate after 01.12.03. If not, an unmarried father may enter into a Parental Responsibility Agreement with the child's mother which is a formal document signed by both parents in front of specific witnesses and which is lodged with the Principal Registry of the Family Division of the High Court of London. Such an agreement would confer the rights and duties set out above on the unmarried father. If the child's mother would not agree to a formal Parental Responsibility Agreement, then an unmarried father may apply to the Court for a Parental Responsibility Order.

The Children Act does not unequivocally state what constitutes parental responsibility, but there are a number of key roles which the person or persons with parental responsibility would have.

Whether they are cohabiting, married, are divorced or separated, the person or persons with parental responsibility are accountable for:

• provision of a home or homes for the child;
• having contact with and/or living with the child;
• protecting and maintaining the child;
• providing discipline for the child;
• choosing and paying for the child's education;
• agreeing any religion in which the child will be brought up; and
• agreeing on provision of medical treatment for the child.

The person or persons with parental responsibility, whether cohabiting, married, divorced or separated will also be obligated to:

• name and agree on any name change for the child;
• accompany the child outside the UK:
• agree or disagree to emigration of the child, should the issue arise;
• be responsible for the child's property;
• appoint a guardian for the child, if necessary; and
• disclose any confidential information about the child

The role of Healys' family law solicitors in children disputes

The team of family law solicitors at Healys in London and Brighton are proud of their continued success in negotiating parental responsibility orders, child residence agreements and child contact agreements with financial support agreements for children and parents going through divorce and separation.

Their many years' experience as specialist family law solicitors and divorce lawyers has shown that each individual case is different and they have found they can help by listening sensitively before giving straightforward legal advice so that divorcing spouses can weigh up all the options open to them before they decide how to proceed.

If you wish to discuss any aspect of your divorce case or children dispute with the family law solicitors at Healys please call direct to Catherine Taylor on 01273 669 124 or e-mail catherine.taylor@healys.com