Parental Responsibility is defined by the Children Act 1989 as “all the rights, duties, powers, responsibilities and authorities which by law a parent of a child has in relation to the child and their property”.  The term parental responsibility attempts to focus on the parents’ duties toward their child rather than the parents’ rights over the child.

Where important decisions regarding a child need to be made then all of those with Parental Responsibility for the child should be involved in such decisions.   The general day to day decisions should be made by the parent with whom the children reside without interference from the others that hold parental responsibility.   The important decisions which should only be made by those who hold parental responsibility are as follows:

1. Decisions regarding the child’s education and choice of school.
2. Changing a child’s name.
3. Consenting to a child’s operation or certain medical treatment.
4. Consenting to take a child abroad for holidays or extended stays.
5. Determining the religion the child should be brought up with.

All mothers will automatically have parental responsibility and fathers who are married to or in a civil partnership with the mother automatically have parental responsibility and will not lose that if they are divorced or the civil partnership is dissolved.    A father who is not married or in a civil partnership with the mother can obtain parental responsibility in the following ways:

1. Marrying or entering into a civil partnership with mother
2. Having his name registered or re-registered on the birth certificate if his name is not already registered.
3. Entering into a Parental Responsibility agreement with mother.
4. Obtaining a Parental Responsibility Order from the Court.
5. Having obtained a Residence Order prior to the 22 April 2014.
6. Being named as the resident parent under a Child Arrangements Order.

However, Parental Responsibility does not provide an automatic right to the holder to have contact with a child.    What time each parent is to spend with a child is to be agreed between the parties and if an agreement cannot be reached then either party will need to make an application to the Court for a Child Arrangements Order.   Prior to such an application being made the Court will expect the parties to have engaged in Mediation to ascertain whether an agreement can be reached.

Our family department has extensive experience with handling children cases. If you need assistance please contact our friendly team to see how we can help.

Article written by Family & Matrimonial Solicitor, Natasha Aspinall.

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Our Family and Matrimonial team are seeing an increasing number of cases where the well-meaning ‘Bank of Mum and Dad’ is trying to retrieve its money from their child’s former partner or spouse following a split.

With one in three first time property purchases made by couples attempting to overcome the UK’s unaffordable housing market we are expecting the tidal wave of enquiries to continue in the coming months and years as relationships break down.

In most cases the disputes are over whether the cash was initially intended as a gift or a loan. But without a prior formal agreement it can be difficult to prove intent at the time, leaving the other party room to argue it was a gift that doesn’t need to be repaid.

“The difficulty occurs when what was an informal arrangement is later looked at in a different light. What was a non-issue in happier times can become a significant area of dispute.”

It is important for a court to make the distinction, as gifts will be included in the matrimonial pot of assets to be distributed upon divorce whereas loans are classed as a liability to be repaid. In such cases, loans will be deducted from the total assets which results in less overall to divide.

The loan can often represent a significant portion of the assets so it really does make a difference as to whether or not it is an asset that can be split, or something that will not be entered into the calculations.

Issues can be further complicated by whether the courts are dealing with hard liabilities – mortgages, credit cards or commercial loan repayments – or “soft” liabilities such as loans from family and friends without formal repayment terms. In such cases of soft liabilities a court may decide there is less priority for repayment.

When acting for a person whose family has advanced the money and is insisting it needs to be repaid, we will look for evidence that supports it was a loan. Is there a written agreement? Were there emails? Have repayments been made? Quite often we find there may have been really large payments made shortly before the issue of proceedings. In such cases we will go through bank statements, ask questions on such payments and request further evidence.

Where property is concerned, parents should consider registering a charge over the title to the property, which in effect sets out clearly that the loan is there to be repaid.

Pre and post nuptial agreements also offer very clear protection while declarations of trust between parents and their children and / or their children’s spouses also give a clear record of intent.

For further advice on this… or any other Family and Matrimonial matters, please contact our expert team who will be happy to assist.

Article written by Head of Family and Matrimonial, Solicitor Kate Booth.

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Kate Booth, Head of our Family & Matrimonial department warns clients to be aware that an agreed financial settlement may not be as final as they might hope. 

A recent Family Court case has once again highlighted the dangers of failing to take legal advice when dividing assets on divorce.  Here, the couple had agreed their financial split when they divorced 30 years ago, even signing a Deed of Separation. However, they failed to obtain a Consent Order – the court’s approval to their agreement.  This left them without a clean break.  Although they initially remained on good terms, disagreement arose years later.  Without a clean break order, the parties still have the right to make financial applications against each other into the future.

Kate say’s

“It is always essential for clients to deal with their financial arrangements formally on divorce – even if there are not many assets.  Often, when agreement is reached, spouses might be happy to proceed on a less formal footing, but this can store up problems for the future.  Circumstances may change, asset values may alter. If the court has not made a clean break, financial claims can remain open indefinitely.

Every couple’s situation is different, we provide personalised advice to ensure that clients can protect what is important to them and their family.”

If you require advice on the above, or any other family or matrimonial related matter, please do not hesitate to contact our friendly, understanding team.

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Solicitor and Head of our Family & Matrimonial depoartment Kate Booth said:

“We know that the pandemic has put huge pressure on families, particularly those who are separating. Every parent wants to put their children’s interests front and centre, but often they don’t know where to turn for help or support.”

“It’s important for parents to have access to good, authoritative and professional advice that helps them to parent responsibly through their separation. The Parenting Through Separation Guide, can help parents find a better way forward for them, and for their children.”

The free guide, published as part of Good Divorce Week contains advice about how to co-parent with a former partner and how to talk to children about the painful topic of divorce or separation, plus much more.
 
Juliet Harvey, national chair of the family justice organisation Resolution, said:

“I’m really pleased to have Kate’s support during Good Divorce Week. Resolution members like her do really important work in their community to help families separate in a constructive and amicable way. The more families who know about and use the free Parenting Through Separation Guide, the better equipped they will be to navigate the challenges divorce and separation brings, particularly when it comes to putting children first.”

For a copy of the free guide or further advice & support, please contact our friendly Family Law & Matrimonial team Kate Booth or Samantha Chater.

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It is clear that this should not be happening, but usually parental alienation has been dismissed as a common product of bitterness about a failed relationship. But it is actually more than that and it is an intentional form of parental psychological abuse and undermines Universal Declaration Of Human Rights.  In Mexico and Brazil, it is even classed as a criminal offence, so it is good that CAFCASS are now starting to raise awareness about the emotional impact that parental alienation has on the child and they have started to make changes to ensure that parental alienation decreases.

These are complex cases which here at Brindleys we can deal with and unfortunately it is present in about 11%-15% of all UK divorces which makes up 10% of CAFCASS’ private law caseload.  This affects around 6000 children a year, but the new strategy that CAFCASS have implemented will mean that the children can be taken away from the alienating parent and placed with the ‘target parent’ when social workers detect signs of manipulation and the focus will be on allowing the child to maintain a relationship with both parents.  If the alienating parent fails to improve their behaviour, then contact with the child will be restricted and in serious cases, refused.  CAFCASS have developed a 12 week programme called Positive Parenting to help the abusive parent put themselves in their child’s position and change their behaviour.  Some cases involve psychologists and psychiatrists which are brought in to assist with this ground-breaking initiative.

It is clear that the Courts need to step up to these cases far more than they are doing.  These are very complex issues as many parents genuinely believe that they are improving their child’s life by shutting out the other parent and in other cases, both parents feel as though they are victims of alienation, so it is good that things are moving forward, but if you feel that there is parental alienation in your family life, you need to make sure that you act fast.  Give us a call and we will happily talk you through your options to ensure that this is dealt with in the best way for the children.

If you need any help with any family issues, please contact our Family Law specialist Samantha Chater .  You can call Samantha on 024 7653 1532 or email her directly at samantha.chater@bttj.com.

Samantha has a wealth of family law experience and is an accredited member of  both Resolution and The Law Society Children Panel.

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I understand it is difficult, especially after separation, for parents to agree on anything. A child’s education is key though in determining how their life will plan out.

If you cannot agree on the school, then the Court can decide. If one parent applies for a school which you object to then you can apply to stop the application by applying for a Prohibited Steps Order. If you are applying to stop the child attending a specific school I advise clients to also apply simultaneously for a Specific Issue Order which will determine that issue, in that case which school the child will attend. If you fail to make this application, it leaves the question of which school the child will attend.

With school applications, OFSTED reports are just one piece of evidence that the Court will consider. It is not always the best school in the area that is the most appropriate for the child. In considering whether to make an order, the child’s welfare must be the court’s paramount consideration and in relation to contested applications, it must have regard to the welfare checklist, i.e.:

* the wishes and feelings of the child concerned
* the child’s physical, emotional and educational needs
* the likely effect on the child if circumstances changed as a result of the court’s decision
* the child’s age, sex, background and any other characteristics that will be relevant to the court’s decision
* any harm the child has suffered or may be at risk of suffering
* the capability of the child’s parents (or other relevant people) in meeting the child’s needs, and
* the powers available to the court

The court must always bear the ‘no-delay principle’ in mind. This prevents any delay in deciding the case, as otherwise this would be prejudicial to the child’s welfare. Furthermore, the court must be satisfied that making an order is better for the child than making no order at all. Therefore you must have substantial reasons for wanting to bring this claim.

If you feel that your opinion is not being considered in relation to the school application, telephone me to discuss the next steps. Depending on the child’s age, they have a say and their wishes and feelings are always paramount.

I advise looking at schools in the catchment area with your child and noting the pros and cons to each before making an application. The court will want to know that you have not made this decision lightly and that you can give valid reasons for wanting your child to attend a particular school.

These applications can take several months to process through Court, so please call me on 02476 531532 in good time, especially if you have concerns about the school your child may be attending next year.

Melanie Davis (née Timms)
Family Solicitor

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Determining who has parental responsibility is key. If both parents have parental responsibility, and there are no child arrangements orders or any restrictions in place, then neither of you can take the child abroad without the written consent of the other person with parental responsibility. If they refuse to give consent, you will have to apply to Court for permission to travel abroad with them. These applications can take time, so apply several months before the holiday.

If however you have what used to be known as a ‘Residence Order’, or now known as a Main Care Arrangement Order, then you can travel abroad with the child for 28 days without permission. This is the same for a mother, who alone has parental responsibility. She can take her child abroad without permission if there are no other orders or restrictions in place. In practice I recommend that you agree the arrangements in advance though with the other person with parental responsibility.

There is nothing to stop the other parent from applying at Court for what is known as a Prohibited Steps Order to stop the child travelling abroad.  To appease the other parent, I always advise that at the beginning of each school year (September) you consult with the other parent and agree dates for you both to travel with the child throughout the year. This should not be restricted to the summer holidays.

Make sure arrangements are made for handing over the child’s passport and forward these documents to the other, ahead of the holiday:

a. Dates of departure and arrival
b. Accommodation details
c. Flight details
d. Contact numbers

Make sure that your written permission will stand up at the airport. I have had parents in tears before because they are checking in at the airport with the children and the “permission” they thought they had was insufficient for border control to allow them to travel with the child. Some airports are more thorough than others, but I always advise that you obtain a letter from the person with parental responsibility allowing them to travel and ensure that letter includes their contact details. Always bring your child’s birth certificate to show your relationship with the child and if necessary, any Court Order.

Be careful when your surname is different to the child’s. You may need your marriage certificate or decree absolute to show your previous surname, or a change of name deed, if applicable.

I advise that you also check the age limit up to which the person is considered as a child in the country you are travelling to. Check with the embassy or consular office where necessary as that may avoid the above having to take place.

So in summary, happy holiday planning-but beware of the above and if in doubt, speak to the other person with parental responsibility, to avoid any headache later.

About us

We are a firm of solicitors in Coventry – if you wish to book an appointment with a family solicitor, please contact us on 024 76 53 1532.

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