Children and divorce


Finalising a divorce or separation can be very stressful for any couple, but also extremely confusing and worrying for any child.

If you are having disputes over child issues following a decision to divorce, a specialist family law solicitor or mediator will help resolve the issue as amicably as possible.

The Children Act 1989

The Children Act 1989 is legislation developed with the intention of ensuring that a child’s welfare is the dominant consideration factor when deciding such cases involving family break-ups.

The Act sets out a “welfare checklist” under Section 1(3) which lists issues that the court should take into consideration:

  • The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)
  • His physical, emotional and educational needs
  • The likely effect of any change in his circumstances
  • His age, sex, background and any characteristics of his which the court considers relevant
  • Any harm which he has suffered or is at risk of suffering
  • How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs
  • The range of powers available to the court under this Act in the proceedings in question

Family break-ups can be very upsetting to any child and so there is a duty to all courts and solicitors to prevent delay in cases involving children. However, if the couple has already made arrangements over their child’s welfare, and both parties have agreed, then the courts will not interfere.

The Children Act 1989 allows the court to set several orders in benefit to the child involved.

Residence orders

One of the orders which could be granted is a residence order. This declares who the child should live with and therefore is very similar to the old custody rules.

A residence order will usually continue up until the child is 16 years old, unless there is an exceptional circumstance which will prolong the order. The court can also issue a contact order which allows the child to visit the parent who he or she does not live with.

Prohibition order

Another order is the prohibition step which prevents certain acts that one parent may not agree to, for example moving abroad; whereas a specific issue order can come to an answer to such issues like medical treatment.

Parental responsibility order

Finally, the court can also issue a parental responsibility order which would benefit an unmarried father. This order was predominantly introduced by the Children Act 1989 and so if a child is born after December 2003 the father of the child has automatic parental responsibility.

However, if a child is born before December 2003 a mother is declared as having sole parental responsibility, but the father can change this through several methods, for example, by:

  • Marrying the mother of the child
  • Applying for a parental responsibility order

Due to the complicity and sensitivity of such cases, it is essential that you gain advice from a specialist children solicitor. The solicitor can advise you through your case enabling you to make the right decisions. If you’d prefer to consider mediation, see our page on family law mediation.

Do you need help choosing a family law solicitor specialising in child dispute issues? Contact Law can make a free recommendation for you and choose the best solicitor for your case. Please call us on 0800 1777 162 or complete the web-form above.

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