Children and the family: legal questions answered

Family Law|July 24th 2015

Solicitor Mark Christie is head of the children’s department here at Stowe Family Law. In this special feature, he answers some of the many questions that have brought visitors to the Marilyn Stowe Blog over the last few weeks.


If a judge allows a wife to stay in the house with children until they’re eighteen, what happens if the woman meets someone else?

If the woman meets someone else then providing that person presents no risk of harm to the children there should be no issues or problems. The Court accepts that when a couple separate one or both of them will normally find a new partner or enter into a new relationship and therefore the new partner will usually have some relationship with the children. Provided that the partner is an appropriate person to spend time with the children then there should be no issues. If on the other hand there would be some risk then the father would be entitled to object and ultimately make an application to Court.


To what extent do the family courts take the wishes and feelings of a child into account?

The Family Court increasingly takes into account the wishes and feelings of children who are the subject of proceedings under the Children Act. There is an increasing recognition of the fact that children’s voices need to be heard as part of the Court process when they are the subject of proceedings between their parents. The law specifically provides that the wishes and feelings of the children should be considered by the Court dependent upon their age and level of understanding.

Normally CAFCASS or social services will talk to the children and confirm in any report ordered by the Court their wishes and feelings. The weight attached to those will depend upon their age and level of maturity and understanding. Up to about eight or nine their views will not carry much weight but thereafter increasing weight is given to their views and at twelve or thirteen and beyond their views can often be determinative. Recent developments have made provision for children involved in proceedings to write a letter to the Judge (facilitated by Cafcass or social services) and in some cases a child (of an appropriate age and level of maturity) may see a Judge, though this is not to give evidence but just so that the child is reassured as to who will be making a decision about him. There are strict guidelines laid down for such meetings between the Judge and the child.


Can I bring my children back to the UK from Australia without the father’s permission if I fear for our safety?

I cannot advise you as to the law in Australia but in the reverse scenario, if you wanted to remove children from the UK to Australia you would need the father’s permission (preferably written) or the Court’s consent. The latter would be granted following the making of an application to court for a so-called Specific Issue Order, under Section 8 of the Children Act 1989. If you and the children are residing in Australia then you may have to make an application to the Australian courts if the father does not give consent to you returning to the UK. You should seek initial advice from an Australian lawyer specialising in this area of the law.


Can my partner take my child away because of adultery?

In a word, no. The reason for the breakdown of a marriage or other relationship is not usually relevant to the care of a child of that relationship unless there are unusual or serious circumstances surrounding the adultery or you are in a relationship with a person who might pose a risk to your child. Otherwise, the Court would not be interested in why the relationship has broken down and this would have no impact upon you continuing to care for your child.


Can my daughter-in-law stop me seeing my grandchildren?

The law says that you have a right to have a relationship with the grandchildren and therefore, if your daughter-in-law has no justification for stopping you having such a relationship you could be entitled to make an application to court for a child arrangements order, as long as you first obtain the Court’s permission to make the application. As long as you pose no risk of harm to the grandchildren, have a good relationship with them and your motivation for making such an application to court is a genuine desire to continue the relationship, then you ought to have a good prospect of succeeding. The Courts increasingly recognise the important role that grandparents play in their grandchildren’s lives.


Can my friend become the adopted father of my child?

It depends on who your friend is and whether or not the local authority would deem him a suitable person to adopt. Consideration would need to be given to the natural father’s position and whether or not he agrees to the adoption process. Adoption severs the link between the child and the father and so is dealt with sensitively and with great care. You ought to take legal advice from a specialist if you wish to proceed. The local authority can be very helpful and indeed will need to be involved in any event.


Do women with children get 50/50 in divorce?

Currently the position is that when dividing matrimonial assets after a marriage has broken down, the Court will consider whether or not an equal division would be fair and would meet the reasonable needs (primarily housing and income) of both parties – particularly any party who has ‘minor’ children (i.e. below the age of 18). If the assets are sufficient for those needs to be met with a 50 per cent division then this may be the correct approach. However, if 50 per cent would not meet the reasonable needs of the party with children then a departure from equality will be justified given that the needs argument will always outweigh the equality argument.


What options are open to fathers who prevented from seeing their children by their ex-partner despite being granted access?

There are a number of options open to a father who is being denied contact with their children, particularly where there is a court order specifying such contact in place. You would be entitled to make an application to court to enforce the order and if the Court is satisfied that the mother is deliberately acting in breach of it she can be fined, ordered to do unpaid work in the community or in the most serious of cases sent to prison for ‘contempt of court’ – ie disobeying a court order. In some cases the Court can actually make an order transferring residence from the mother to you provided, of course, you are in a position to fully care for the child.


Can my American wife take our British-born child to America to live?

Assuming the family is in the UK then your consent would be needed before your wife can take your child to live in America. If you do not consent then either you can make an application to court for two court orders – a prohibited steps order and specific issue order. Both of these are issued under Section 8 of the Children Act 1989 and will prohibit her from removing the child from the Court’s jurisdiction (i.e. from England and Wales).

In relation to her desire to relocate with your child, she herself could make an application for a specific issue order, in effect asking the Court to consider her plan.

But if there is any fear that she might take your child out of the jurisdiction without your knowledge or permission, you should make an immediate application to court for a prohibited steps order and specific issue order. In very urgent cases this can be done without giving her notice. In any proceedings the Court will make a decision based upon what is in the best interests of your child and not necessarily what you or the child’s mother desire.

Mark Christie is the head of Stowe Family Law’s dedicated Children’s Department. Mark has specialised in family law for more than 35 years and provides clients with a wealth of practical experience.

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  1. Alistair Nunn says:

    Where a child’s opinion is taken into account, what procedures currently exist to detect and investigate cases of parental alienation, where a child feels obligated to take the side of one of the parents (usually the mother) or who has simply been brainwashed into thinking that their father is the devil reincarnated?

    As for grand parents having the right in law to see their children. What’s written means nothing at all when those in authority choose to break every UN Convention when it suits them because they as individuals say that it lies within the best interests of the child.

    When the law cannot even help a father to see his child, how then can it expect it to grant access to grandparents?

  2. Luke says:

    “As long as you pose no risk of harm to the grandchildren, have a good relationship with them and your motivation for making such an application to court is a genuine desire to continue the relationship, then you ought to have a good prospect of succeeding.”
    I am willing to be corrected but can you come up with plenty of examples where a mother has been:
    (1) Fined heavily (which will of course negatively effect the child).
    (2) Forced to do community service (which will of course negatively effect the child).
    (3) Imprisoned (which will of course negatively effect the child).
    when she has steadfastly refused to allow child access to a grandparent she deems unsuitable.

  3. Luke says:

    I cut and pasted “effect” instead of “affect” – my mistake.

    I should add that I am not in favour of “grandparents rights” at all – partly because of the scenario above – they are unworkable and just result in more expensive litigation for the people who actually have to be legally responsible/feed/clothe/ look after the children.

  4. Luke says:

    Nice clean-up of my post Cameron 😉

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