Child Support and Child Law
There are two types of law that relate to children.
Public Law: This is where cases involving children are brought to the attention of the court usually by local authorities (Social Services or Education department) or the NSPCC. Public Law covers:
- Care orders. which give parental responsibility for the child concerned to the local authority applying for the order
- Supervision orders, which place the child under the supervision of their local authority
- Emergency protection orders, which are used to ensure the immediate safety of a child by taking them to a place of safety, or by preventing their removal from a place of safety
Public law cases start in the Family Proceedings Courts. They may be transferred to the County Courts if it will speed up or enable the case to be combined with other family proceedings, or where the matter is exceptionally serious and/or complex.
Private Law: cases that come to court through private law are usually in connection with parental divorce or separation. These cases usually are linked to issues regarding:
- Parental responsibility
- Applications for Maintenance
- Guardianship (this gives the person who is the legal guardian of the child responsibilities but without taking the legal responsibilities away from the birth parents)
- Special Orders (these define where a child lives, the amount of parental contact and responsibilities. This type of order can also prohibitive orders that can prevent a parent taking the child out of the country).
Children at the end of a marriage
Contact with grandchildren if the parents’ divorce or separate
Sometimes when couple divorce or separate they forget the importance of the children to have the stability of contact with other members of the family especially grandparents.
What to do
In the first instance you need to try to reach an agreement with the parent. If that does not work it is possible to get a court order to gain access to your grandchildren if their parent stops you seeing them.
To apply for court order you need to fill out a form and send it to the nearest Divorce Court. There may be a court fee for this service.
Useful Links: Contact for Grandparents
At the end of a marriage both parents have the financial responsibility to their child irrespective of where the child will live.
There are basically three ways to get an agreement:
- By agreeing through a family based arrangement (you may consider help from the mediation system for this). This is also called a voluntary agreement and can be verbal or a written agreement.
- Through the Child Maintenance Service (CMS). The CMS can help with looking at options; estimate the size of a payment and refer you to other secondary organizations. It may also helpful to get independent legal advice.
- Through the Court system. If you choose this pathway, the Court will have the expectation that you will agree to work with Family Mediation before they hear your application. The court will take into consideration the financial circumstances of both parents and this will include any pensions. Again you would benefit from professional legal advice.
For further information on Child Law:
What is Adoption?
Adoption is the formal removal of the rights, duties and obligations of the child’s biological parents. These rights, duties and obligations are then passed on to the adoptive parents. When a child is adopted they become a full member of their new family taking on the family name, and have the same rights and privileges (including inheritance) as if they had been born into the family.
The whole process of adoption can take a considerable amount of time, Laws surrounding Adoption are complex as also is the screening process of the adoptive parents. The Family Court needs to be confident that all the stages of the process have been lawfully and legally carried out.
The child that is adopted may maintain some contact with their birth family, this could take the form of letters that are not sent directly to the child but through the use of a ‘letterbox drop’ with a birth parent or visits with a brother or sister that live elsewhere. But the child’s safety (both physical and emotional) should remain or paramount importance)
Although Local Authority Social Workers will figure to be the principle figures in this process, it is important that prospective adoptive parents have adequate legal representation of a solicitor who specialises in the complexity of adoptive law.
From a child’s point of view, the adoption process sometime takes longer because decisions need to be made about their care plan. In this case the child may be fostered while plans are being completed.
If a child cannot live with their birth families, then Special Guardianship is another legal option. Special Guardianship is where the child lives with a new family but the birth parents still retain their parental responsibility.
Useful Links: Adoption Laws
Child abduction is unlawfully taking a child who is under the age of 16, away (detaining or depriving them) from their family, carer or person who is responsible for them at the time, without ant permission or justification.
Child abduction can be committed by parents, family members or by people who are known but not related to the child such as neighbours, friends, and acquaintances or by strangers.
Not all abductions are reported to the police. Part of the problem is the terminology used. In England, Wales and Northern Ireland, abduction may be recorded as a kidnapping and in Scotland it would be reported as child stealing.
It is also important to realise that the public perception of child abduction seems to be influenced by high profile cases that usually involve a predatory offender with a sexual motive often which results in the death of the victim. These cases are very rare.
Parents and relatives abduct children in a variety of circumstances, such as being taken from social workers during a contact visit, or are taken away from a care home all of which is in breach of a care order.
Actions to take
If you think that your child may be abducted by you ex-partner of a member of their family (or friend) then you can apply to the Family Court for an order that will prohibit them (or a person representing them) from taking the child out of the country or removing the child from their home or school without your permission. You need to seek legal advice as soon as possible to prevent any abduction.
Useful Links: Child Abduction UK Facts
International parent abduction
In the UK around one third of reported parental abductions are cases where children from minority ethnic groups. Research has shown that the abduction often occurs when the parents separate or start divorce proceedings.
Unless the action is contrary to any order that a Judge has made, the removal of a child from the UK by one of their parents for a period of up to 28 days or more without the permission of the other parent is a criminal offence.
If there is no Court order in place that prevents one parent taking the child out of UK then the parent that has the rights of custody of the child can use civil law to initial procedures under the 1980 Hague Convention to either get the child returned or to secure their own rights to get access to their child.
If the child has been taken out of the UK without permission then it is important that the Police are notified and legal advice is pursued immediately. There are links and reciprocal arrangements between the UK and other countries, but timely interventions are paramount.
Seek advice from a solicitor who has expertise in these types of situations
Useful Links: Help to get your child back from abroad
What does Child Contact involve?
If you have been unable to make an agreement with your partner through mediation regarding the arrangements for your child, you can apply for a number of court orders to try to rectify the problem.
Who can apply?
The child’s mother or father or anyone with parental responsibility can apply. Grandparents can apply but they need to get court permission first,
Child arrangement order will define (child arrangement orders replace what used to be known as residence orders and contact orders).
- Where your child will live
- When your child spends time with each parent
- What other types of contact such as phones calls and when
Other orders can specify which schools the child will attend and whether they should have religious education.
How do you apply for a court order?
There is a form that needs to be completed and then sent to the nearest court that deals with cases that involve children. Currently the cost is in excess of £215 to apply. Ideally you should consult a solicitor who can guide you through the process and represent you in court.
What to expect in court.
- Initially the court will arrange for a ‘directions hearing’ from both parents.
- There will be a family court adviser present (CAFCASS) who will contact you prior to the hearing.
During the hearing the judge or magistrate will try to decide what you will agree to and what you cannot agree on and whether the child involved is at any risk,
If you can reach an agreement then the judge or magistrate will end the process and a consent order will be made by the court which will outline what agreements have been reached,
If agreements cannot be reached at the first hearing then the judge or magistrate will set out a timetable which may include attending meetings with a mediator or attending a course that will give you the skills to help make the contact arrangements work. Your ex-partner will not be attending the same sessions as you.
The court process stops as soon as an agreement is reached.
The judge or magistrate will ask for a report from the CAFCASS 0ffcer. This report will involve the CAFCASS Officer asking the child about their wishes and feelings in the matter. The report will also determine:
- the child’s physical and emotional needs
- effect any changes may have on the child
- child’s age, gender, characteristics and background
- possible risk of harm to the child
- ability of parents to meet the child’s needs
The parents as well as the judge or magistrate will also get a copy of the report. Decisions will only be made in the best interests of the child.
Useful Links: Looking after children if you divorce or separate
Within the UK each country has it own system and policies that cover aspects of safeguarding and child protection and child abuse but essentially they are all based on similar principles.
We’re all responsible for reporting concerns about a child’s welfare. Although there is no legal requirement to report, there are specific guidelines and procedures in place for people who work with children.
We’re all responsible for reporting concerns about a child’s welfare. In Northern Ireland it’s also an offence not to report an arrestable offence, including those against children, to the police. There are specific reporting guidelines and procedures in place for people who work with children
We’re all responsible for reporting concerns about a child’s welfare. Although there is no legal requirement to report, Scotland’s national guidance for child protection refers to “collective responsibilities” to protect children. There are specific guidelines and procedures in place for people who work with children.
We’re all responsible for reporting concerns about a child’s welfare. Although there is no legal requirement to report, there are specific guidelines and procedures in place for people who work with children.
- Some groups of children are more vulnerable than others and are entitled to support with education, employment and training until the age of 21 (it is usually 18)
- Throughout the UK, it is illegal to have sex under the age of 16. The law is there not to prosecute under 16’s who have mutual consenting sexual activity, but to protect issues where there is abuse or exploitation those who are involved.
- If an adult engages in sexual activity with a child who can never legally give consent, they will be prosecuted under the Sex Offenders Act and will be added to the sex-offenders register.
- The law also gives protection to young people aged 16/17. it is illegal to: take, show or distribute indecent photographs. This is especially important when such photographs can be distributed to a wide audience at the touch of a button through social media. It is also illegal for a person in a position of trust, such as a care worker or teacher to engage in sexual activity with anyone under the age of 18.
Anyone who thinks that a child is in an abusive relationship of has been abused in any way has a moral responsibility to pass on the information to the authorities namely Social Services and /or the Police. It is always a good idea to get independent legal advice.
The need for Child Support is largely recognised in the UK and the help that is available can be broken down into two sections:
“Child maintenance is regular, reliable financial support that helps towards a child’s everyday living costs.The parent without the main day-to-day care of the child pays child maintenance to the parent with the main day-to-day care” (CSA 2011).
In most cases the non-custodial parent is the one who makes these payments to the parent who has custody of the child/children, though may in some cases be a guardian or even the government.
Typically there is no gender requirement to child support, for example, a father may pay a mother or a mother may pay a father.
Where there is joint custody, the child is considered to have two custodial parents and no non-custodial parents, therefore one custodial parent will be required to pay the other custodial parent.
In family law, child support is often arranged as part of a divorce or separation.
The right to child support and the responsibilities of parents to provide such support have been internationally recognised.
In the UK The Child Support Agency (CSA) is a government service to make sure that parents who live apart from their children contribute financially to their upkeep by paying child maintenance.
“Child abuse is any form of physical, emotional or sexual mistreatment or lack of care that leads to injury or harm” (NSPCC 2011)
- Drug Misuse
- Youth Crime
- Mental Health
- Sexual Abuse
- Domestic Violence
- Child Poverty
ChildLine is a counselling service for children and young people. You can contact ChildLine about anything as no problem is too big or too small.
Some of the things that you might want to discuss are feeling lonely or unloved, worries about the future, problems about school, bullying, drugs, pregnancy, HIV and AIDS, physical and sexual abuse, running away and concerns about parents, brothers, sisters and friends, or if you have got into trouble with the law.
ChildLine also has a number of Welsh speaking counsellors so if you need to speak to someone in Welsh they can arrange a time for you to speak to a Welsh speaking counsellor.
Founded in 1884, the NSPCC is still working towards ending cruelty to children in the UK. They protect children across the UK by running a wide range of services for both children and adults, including national helplines and local projects. Over the last decade in particular, their services have helped improve the lives of thousands of vulnerable children throughout the UK.
The most important responsibilities of a parent are to provide a home for your child and to protect and support that child.
It may be that due to separation or divorce, you have parental responsibility for a child that does not live with you. The difficulty is that you have parental responsibility but you may not have the right to contact them. If this is the case then the other parent must keep up to date about their progress and well-being.
Other parental responsibilities include:
- Naming the child
- Keeping the child’s behaviour in check
- Having an influence on and a say in the child’s education
- Approving medical treatment
- Making sure that the child is looked after properly
Even if a parent does not have parental responsibility they need to make sure that the child is provided for financially.
Who has parental responsibility?
The mother will always have parental responsibility from birth for her child unless there is adequate legal reason that prevents her from taking on this role.
In England And Wales
The father has parental responsibility if:
- He is married to the child’s mother.
- He is named on the child’s birth certificate (it is possible to apply for parental responsibility if you do not routinely have the right).
If the couple is unmarried the father can get legal responsibility for the child if:
- He and the child’s mother jointly register the birth.
- He gets an agreement from the mother to enable him to have parental responsibility.
- He gets a court order that allows him legal parental responsibility.
The father automatically has parental responsibility if he is married to the child’s mother when the child was conceived or he marries the mother at some later date or he is named on the birth certificate.
In Northern Ireland
The father automatically has parental responsibility if he is married to the child’s mother at the time of the birth or they get married at a later date and live in Northern Ireland at the time of the marriage. He also has parental responsibility if he is names or becomes named on the birth certificate.
If a child is born overseas and comes to live in the UK, parental responsibility will depend on the UK country that they choose to live in.
If there are any concerns regarding the legality of a person’s parental responsibilities then it is wise to get independent legal advice.
Useful Links: Parental Rights and Responsibilities
What is Paternity Testing?
Paternity testing (often referred to as a DNA test) is used to solve any disagreement about the parentage of a child.
A court can ask for a DNA test if there are issues concerning maintenance or inheritance. The Child Support Agency (CSA) can use the information to solve disputes.
What does the paternity test actually show?
It can show one of two outcomes:
- That there is a 100% probability that someone is not the child’s parent.
- That there is a 99.9% probability that someone is the child’s parent,
What is the process?
The person that the child lives with has to agree to the test. If that parent refuses to agree to the test then you can apply to the court for their ruling. There is a cost for this. If the court approves then the test can be arranged through the CSA or a private company.
However the CSA and the Court will only accept the results of the test if an approved company is used; there are acceptable security arrangements (so the samples cannot be tampered with); there is an agreement that the test was conducted properly and the samples were from the appropriate people.
If a child is over the age of 16 they need to give their permission for the test.
If the testing goes ahead an information pack is sent to the parent with whom the child lives with as well as a pack to the person who is named as the child’s father.
The parent who the child lives with chooses a doctor to do the test, and the testing company sends a kit to that doctor. After the doctor has taken the sample they send it to the test company.
The test company sends the results to the person who is named as the father; the parent who the child lives with and the person who is managing the paternity case on behalf of the court or CSA.
Fees for the test vary but the fee is normally charged to the person who has been named as the parent. Whichever service is managing the case will calculate the payment which will include child maintenance and the copy of the DNA test.
If the test proves the person is not the parent then service who is managing the case should refund any maintenance that was paid after parentage was denied and the cost of the test if appropriate. It is unlikely they will refund payments that were paid before the parentage was denied.
Useful Links: Approved paternity testing laboratories
Surrogacy and surrogate mothers
A surrogate mother is defined as the birth mother who has signed a parental order after giving birth that transfers their parental rights. Legally the birth mother is always treated as the legal mother and has the legal right to keep the child even if they are not genetically related.
Throughout the UK it is illegal to pay a surrogate mother except for any out of pocket expenses. Likewise surrogacy contracts are not enforceable by law in the UK.
Surrogate mothers’ rights
A surrogate mother has the same employment rights to 52 weeks maternity leave and can return to their job just as any other expectant mother.
Legally the child’s father is the surrogate’s husband or civil partner unless the legal rights are given through a parental order or adoption by to someone else. If the surrogate mother as no partner the child will have no legal father.
If the arrangements go wrong
The surrogate mother may change her mind. If this is the case decisions need to be made and upheld especially if there is concern that the baby is in danger. If this happens you need to seek advice from a solicitor who can help look at the other legalities that may apply to keeping the baby safe.
Ideally you need to discuss the arrangements with a solicitor before you embark on any surrogacy plans.
Adoption of a child from a surrogate mother
If the intended parents wish to become the legal parents of the child then they have to apply for a parental order or adoption. The application for a parental order needs to be made within 6 months of the birth. To get a parental order at least one of the couple needs to be genetically related to the baby (either the egg or sperm donor). The couple must be husband and wife; civil partners or two people who are living as partners.
It is important that when filing for adoption that the couple use a registered adoption agency.
What if the child is born outside of the UK?
If the couple are UK citizens then they can apply for a parental order, but the child will need a passport and a visa to enter the UK.
Useful Links: Rights for surrogate mothers