The most emotive issue for any parent, when deciding to separate, is in respect of the arrangements for the children.
This can often lead to arguments resulting in children being caught in the middle as their parents argue as to: who should care for them, how often the non-resident parent should see them or what school they should go to?
Inevitably this can lead to intractable problems which sometimes require to be dealt with through the family court system.
The legislation in this jurisdiction in respect of children is enshrined in the
Children Order (Northern Ireland) 1995 which states as its main principle that the welfare of the child is the paramount consideration for the court in reaching decisions in that the court supply a welfare checklist and are required to have particular regard to:
a) The ascertainable wishes and feeling of the child concerned, considered in the light of his/her age and understanding;
b) The child’s physical, emotional and educational needs;
c) The likely effect on the child of any child in his/her circumstances;
d) The child’s age, sex, background and any characteristics which the court considers relevant;
e) Any harm which the child has suffered or is at risk of suffering;
f) How capable each of the parents, and any other person in relation to whom the court considers questionably relevant, is meeting the child’s needs;
g) The range of power available to the court under the Children Order.
Generally, the starting point for the courts is determining what the best interests of the child are that this is protected by ensuring that the child retains links with both parents.
In applying the law, the courts adopt a “No Order” principle in which it will only make orders when it is necessary in the best interests of the children, and therefore if parents can come to their own arrangements then an order will not be necessary.
If however there is parental disagreement in issues concerning the children the principle orders that a court can make are contained in Article 6-8 of the Children Order which is as follows:
Residence Orders – This Order determines where a child will live and with whom and can also be reflected by way of a joint Residence Order; in other words a shared care arrangement between the parties after the application.
Contact Orders – The court can make a Contact Order where there is a disagreement between the person that the child is living with and the qualifying non-resident applicant, usually a non-resident parent or another family member such as a Grandparent, about seeing the subject child. The court can make an order requiring the person whom the child is living with to allow the child to visit or stay with the non-resident applicant.
Parental Responsibility Orders – This conveys “all the rights, duties, powers, responsibilities and authorities which by law a parent of the child has in relation to the child…”
Specific Issue Orders – This is an Order, which resolves disputes in particular areas of Parental Responsibility, such as determining which school a child should go to.
If you require any advice in respect of the above issues, please contact:
Andrew Smyth – 028 91 479900
45 Main Street
Sarah Burke – 028 90 655511
217 -219 Upper Newtownards Road
Ashlee Willdridge – 028 90 489816
49 Comber Road