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Should I apply for a Court Order? My ex and I are in dispute over the children.

Published: 18th November 2020 - Category: Children - Author: Lynne Bastow

Separation is a stressful time particularly when children are involved. The breakdown of marriage or a long terms relationship is one of the most emotionally draining life events. Ideally when it comes to child arrangements the parents should make decisions between themselves in deciding what is best for the child after separation. Mediation is a process which assists parents to reach their own decisions via an independent third party. This is preferable to having a judge decide for you. If you cannot reach agreement however it is important to obtain legal advice. A court application may be necessary if there is no other resolution to the family conflict.

Within children disputes there are various court orders available dependent upon the circumstances of the matter. The court will make most decision concerning children disputes in private law using law contained within the Children Act 1989.

If you should wish for the court to make an order concerning a child or children, then you must apply to a court to make such an order. From that you will be known as the applicant in the proceedings.

Once, the application for a court order has been made, a judge or a legal advisor as well as a panel of magistrates will hear your application and would then make an informed decision based upon the evidence you laid out to them.

All court proceedings take place in the Family Courts division, the court then decides based on what is in the child’s best interests, and this is the courts paramount concern throughout any court proceedings involving children disputes. Furthermore, the court will also have regard to the “welfare checklist” which is a set of criteria that the court must consider throughout the case.

What is in the child’s best interest?

Finally, the court must also consider if making an order is better for the child than making no order at all. In all children matters there is a general principle that it is preferable for matters to be resolved by agreement without needing to resort to a court order. The court will only make an order if it considers that doing so would be better for the child than making no order at all. This is known as the ‘no order principle’.

Who can apply for a Children Act Order?

In order to issue an application for a Children Act Order without court’s permission to do so then you must have parental responsibility for the child or children.

Parental responsibility is defined as:

“all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

If you are seen to have parental responsibility, then your most important roles are to provide a home for the child also protect and maintain the child. You are also responsible for: discipling the child, choosing, and providing for the child’s education. agreeing to the child’s medical treatment, naming the child, and agreeing to any name change and looking after the child’s property.
If in any event that you do not have parental responsibility for the child or children, for example if you are a grandparent, then you will need to apply to the court for permission to make an application for a Children Act order.

What kind of matters does the family court deal and what order may I be seeking?

Child arrangements order.

A child arrangements order is an order that decides the arrangements for whom a child is to live with, spend time or otherwise have any contact with. This can include the parents of the child or any other person. In the past these order was known as “contact” or “custody” arrangements.

One example of this order in practice may include if your child lives with your ex-partner and you wish the court to make decisions concerning when you see your child.

Specific issue order.

A specific issue order is an order that will determine a specific question that has arisen or may arise in connection with the exercise of parental responsibility for a child.

This order can resolve any issues concerning the child’s upbringing. Examples of this could include whether the subject child or children should attend a state school or be privately educated and issues concerning religion or belief.

It may also be used to resolve disputes concerning a child’s name or whether a child should or can be taken out of the country.

Prohibited steps order.

A prohibited steps order is an order which provides that no steps shall be taken by a person concerning the parental responsibility of a child without the court’s consent or permission to do so.

An example of this in practice may include if you have concerns about your partner removing your child from the country or from their nursey/school and you want to prevent this.

Lynne Bastow - Divorce Solicitor

Meet Lynne Bastow

With over 20 years experience, Lynne can provide excellent and valuable advice and has a friendly, positive approach towards all her clients, ensuring you get the best service possible. If you would like my help you can contact me here. Contact Lynne

Read Lynne's Books

If you need more information on divorce, Lynne has published two informative guides on divorce, which you can purchase from Amazon.

The Little Book of Divorce

The Little Book of Divorce

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The Little Book of Divorce Dilemmas

The Little Book of Divorce Dilemmas

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