Children and the law: your questions answered

Stowe Family Law|June 13th 2014

I have been threatened with a non-molestation order. Can’t I contact my children?

Even if you have been threatened with a non-molestation order application, or indeed if such an order is made against you, this may not prevent you contacting your children.  It will depend on the wishes and feelings of the children provided they are of sufficient age and understanding as well as whether or not there are any allegations or concerns about your behaviour directly towards them. If there are no concerns about your behaviour towards the children, or any risks involved in you spending time with them, then there is no reason why you should not contact or indeed spend time with them without the need to involve the other parent. Following the implementation of the Children & Families Act 2014, there is a presumption that the involvement of both parents in the lives of any of their children is in the best interests of the children unless such involvement would possibly present a risk of harm to them.

My ex is using a barrister for children’s matters. What does this mean?

Solicitors and barristers are two separate branches of the legal profession. Until recently, most barristers could not be directly instructed by lay clients and were instructed by solicitors. Now there is some direct access available to the general public. Barristers tend to specialise in Court advocacy and dealing with hearings as well as writing opinions on legal matters and giving specialist advice.  Solicitors have much more day to day contact with clients in their offices dealing with all the routine issues that arise in cases, including correspondence and preparation of documents.  They also undertake advocacy and representation in Court with a number of solicitors having higher rights of audience and indeed specialise in advocacy. The distinction is analogous to that between a consultant and a GP, though the gap is narrowing.

My ex-wife died. Do her children get her half of her home?

This will very much depend on the circumstances of how the property was owned by your ex-wife. If she owned it in her sole name and she made a Will which is valid, then the property will pass to the beneficiaries named in her Will which may well be her children. If she did not make a valid Will then the property will pass in accordance with the Intestacy Rules. Her children are likely to inherit the majority depending on the value of the property and which other relatives may also have entitlements under the Intestacy Rules. If she jointly owned the property with another person then only if she held the property as tenants in common with the other person will her interest in that property pass to the children, provided she has a valid Will in force making provision for the children. If she held the property jointly with another person as joint tenants then her interest in that property, as a result of the right of survivorship, will automatically pass to the other surviving joint tenant.  You may need to seek advice from a probate specialist.

A spouse has been summoned to court for non-payment of child maintenance but he did not attend three times. What happens now?

Generally speaking if a party in proceedings continually fails to attend Court when he/she is required to do so then in the absence of any justification for non-attendance the Court has the power to make such orders as it deems appropriate and fair in the circumstances, notwithstanding the absence of that person. You should be able to invite the Court to make an order in the absence of the other person. However, you may need to satisfy the Court that the other person is aware of the Court hearings, and provide documentary evidence of this, before the Court is likely to make an order in his/her absence.

After the court granted a contact order, my ex-partner still won’t let see my children. What now?

A contact order made by the Court is enforceable and if your ex-partner is acting in breach of the order by not letting you have contact then you have a right to apply for enforcement. The Court can impose sanctions against your ex-partner to include an enforcement order, unpaid work in the community and compensation for financial loss. In severe cases of persistent breach a Court can reverse the living arrangements in respect of a child in appropriate circumstances.

Am I liable to pay child maintenance for my spouse’s children?

Yes if the children are your biological children or, in certain circumstances, if you have treated them as children of the family and supported them previously then you may also be liable to pay maintenance if you are earning an income.  For further information you can visit the CSA/CMS website www.gov.uk/child-maintenance/overview; and also the Child Maintenance Options website www.cmoptions.org/en/other-arrangements/statutory-service.asp.

Can a wife take the children away if the husband commits adultery under UK law?

The issues of taking the children away and commission of adultery are completely separate issues and one has nothing to do with the other. If your wife wishes to take the children away then ordinarily, and certainly if you have parental responsibility for the children, your consent is required. This may, however, depend on where she wants to remove them to. If she is not intending to move far away it is unlikely that you can prevent this happening but if she intends to move a long distance away, or out of England and Wales, then your consent must be obtained or she must request permission from the Court. You can make an application to the Court for a prohibited steps order or a specific issue order.  Equally she can make an application for a specific issue order seeking the Court’s permission to remove the children. Disputes of this nature will very much depend upon the distance involved, how well planned and thought through the move is, the reasons for the proposed move, the impact upon your time with the children and, most importantly, a determination of what is in the children’s best interests.

I have been left in the family home and my ex-partner has defaulted on the mortgage payments even though he was ordered by the courts to pay the mortgage until the children were of age. Now the bank want to repossess the house. What can I do?

The first thing you should do is talk to the bank and explain why you are in this position and that this is no fault of your own and that your ex-partner is in breach of a court order to pay the mortgage instalments. They may agree to postpone repossession proceedings pending you taking legal advice and taking action or they may agree to grant a mortgage repayment holiday. You should also seek urgent legal advice so as to enforce the Court order against your ex-partner. If there is a Court order requiring him to pay the mortgage instalments and he has not done so he is in breach of this order and you are therefore entitled to return the matter to the Court.

Can a father stop a mother moving with their children anywhere in the UK?

In a word, yes. The mother should not remove the children either within or outside the UK without your consent or permission of the Court, particularly if you have parental responsibility for them. You can make an application to Court for a prohibited steps order under the Children Act 1989 to prevent any such move. The Court would consider the location of the move, the reason for the move, the impact upon your time with the children and what is in the best interests of the children. However, the shorter the distance of the proposed move the more difficult it is to prevent it.

Can my Swedish wife leave the UK with my children if we split up?

Your wife will need your permission or the Court’s permission if she wishes to remove the children from the UK. As you are married then you will equally share parental responsibility with her for the children and this places you in a stronger position. If she is likely to try to remove the children from the jurisdiction without your consent you should immediately make an application to Court for a prohibited steps order under the Children Act 1989. The Court will then have to consider the application, the reasons for the proposed move, how this will affect your time with the children and the current arrangements and, most importantly, what would be in the children’s best interests.

Photo by Stephan Hochhaus via Flickr under a Creative Commons licence

Author: Mark Christie

Mark Christie is the head of Stowe Family Law’s dedicated Children’s Department. Mark has specialised in family law for more than 30 years and provides clients with a wealth of practical experience.

Comments(2)

  1. CB says:

    On the bottom of Court Orders Family law cases there is a
    WARNING;
    While a Care Order is force no person may cause the child(ren) to be known by a new surname

    I can prove the surname stated on Full Care order was changed on a Full Care Order by Local Authority.
    Question, is this now a criminal matter
    What does this warning mean in law
    Who do I report this matter to, to be investigated
    Thank you in anticipation

  2. Unwed mothers should marry before their child turns 3, study claims - Marilyn Stowe Blog says:

    […] the results of the study, mothers who marry the biological father of their children are significantly more likely to avoid […]

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