This is not the case, as, if both parents have parental responsibility, they have the same legal rights, duties, power, responsibilities and authority and both equally share the right to make decisions about the child’s care and upbringing.
When parents cannot agree regarding the living or contact arrangements for their children, either parent is entitled to make an application to the court for a child arrangements order. The court will look into many factors, in order to determine what is best for the child.
The court will always ensure that the child’s welfare comes before any other consideration. Other factors considered by the court are as follows:
- The court will take into account the physical, educational and emotional needs of the child or children. This includes any disabilities and medical needs they may have. Where the child’s needs can be met by both parents, the effect of any disruption in changing the current circumstances is looked at as well. Additionally, the court, where possible, avoids splitting up siblings and endeavours to keep them together.
- The court will also look at the capability of either parent to meet the needs of the child. Finances are not generally relevant, however, where either parent has previously failed to meet the needs of the child, this will be taken into consideration.
- The court will take into account the likely effect of any change in circumstances on the child or children. Much of this factor relates to the effectiveness of the current arrangement and whether this can continue or not. However, this is taken into account alongside the other factors and one cannot look at this factor as one single question on its own. For example, it may cause a child great disruption to change the current status quo. Alternatively, one parent may not be able to meet the child’s needs and as such, a change in situation is best for the child in the long run.
- With older children, the court takes into account the wishes and feelings of the child or children. However, the weight of the child’s views in practice will depend on how mature they are deemed to be by the court. In many situations, the court will order a section 7 wishes and feelings report to be undertaken by CAFCASS (the Children and Family Court Advisory and Support Service). In these situations, a CAFCASS Officer will arrange an interview with the child (somewhere neutral like their school) to ascertain their wishes and feelings. The CAFCASS Officer may also interview any other family members, or people involved with the child, as they feel appropriate. After all the necessary people have been interviewed, the CAFCASS Officer will write a report on what they believe is best for the child. It is important to note here that, whilst CAFCASS and the court takes into account the wishes and feelings of the child, the CAFCASS report states what is best for the child – not necessarily what their wishes are.
- The court also looks at any harm the child has suffered, or is likely to suffer. This is based on past behaviour. It is important to point out that the court does not just focus on physical harm but also takes into account any emotional harm the child may have suffered. This is highly subjective to each individual case but any order made by the court is proportioned against the risk of harm to the child.
If, this Mother’s Day, you are thinking about your rights when it comes to disputes over children, remember that no individual case is the same and it is always wise to take legal advice before doing anything.