Parenting and children disputes
If an unresolvable dispute arises in relation to the care of a child, you may need to ask the court to intervene.
You do not necessarily need to be a parent to be able to ask the court to make an order, although if you are in an alternative family situation (or are a donor/ co-parent) it is important to seek expert legal advice as to your options and how to engage with the court system effectively.
Children Act orders
Most disputes in relation to children can be dealt with under the Children Act 1989, which gives the court a number of options including:
Residence orders – which decide who a child should live with.
Contact orders – which say who a child should have contact with.
Specific issue orders – which resolve particular questions.
Prohibited steps orders - which stop a person doing something particular in relation to their care of a child.
The court must make the child’s welfare its paramount consideration, and must avoid unnecessary court intervention and delay. If you make an application for a Children Act order, the court will always have these principles at the forefront of its mind.
Various other people must be involved in any proceedings, including every person with parental responsibility, anyone who has lived with the child for three years or is a party to any pending proceedings relating to the child, and anyone who the court agrees should be involved.
An application should not be made lightly – once made, it cannot be withdrawn without the leave of the court.
Wardship and inherent jurisdiction
The High Court has an ancient and very flexible power to protect people who are unable to care for themselves, including children. This power has developed over hundreds of years through case law and, unlike the Children Act powers, it is not written in legislation.
One feature of this power is the ability to make a child a ward of the court. If a child is made a ward of court, no important steps can be taken in relation to the child’s care without the court’s permission (including, for example, taking the child out of the country, changing his/her educational arrangements, changing his/her whereabouts or changing the adults caring for the child).
Wardship will only be granted where it offers advantages to the child that cannot be given by other means and it is rarely exercised by the court.
Options other than court orders
Lawyer correspondence
Litigation should always be a last resort for resolving a dispute, unless there is a need for emergency action. Negotiation through solicitor correspondence can often help to narrow issues in dispute or resolve arrangements for children altogether, and it is important to engage an effective and experienced lawyer who is skilled in negotiation.
We can enter into constructive correspondence on your behalf to resolve disputes in relation to children or to lay the necessary foundations for subsequent litigation.
Mediation
It may be possible to resolve a dispute in relation to children with the help of a trained mediator. A mediator is impartial and is there to facilitate discussions and an agreement.
You should receive separate independent legal advice during the process and also to document any agreement reached to ensure that your legal position is protected.
How can we help?
Natalie Gamble Associates has leading cutting edge expertise in representing alternative families, including same sex parents, families conceived through assisted reproduction (including donor conception and surrogacy). Please contact us if you would like our help with:
- advising you on your options and how best to tackle a problem which has arisen, whether it relates to contact, residence, financial issues or any particular parenting issues,
- helping you to resolve a dispute without going to court (including through negotiation or our trained collaborative law procedures),
- expert representation in court proceedings, with the benefit of our leading expertise and experience acting in landmark cases.
