Tag: parents

Children and separated parents, family law, parenting, family court, contact order, child arrangement order, residence order

Parenting Plans

What is a Parenting Plan and do I need one?

Separation and divorce are a difficult experience for the whole family and it is crucial  for parents to prioritise any children involved.  For most families, parents will want to ensure that despite the big family changes you are all experiencing, your children continue to know they are loved and that they can spend consistent quality time with both their parents and extended families. 

The best way to achieve stability for the children is to agree a Parenting Plan with the other parent.  Whilst the end of a relationship is traumatic and it is likely both parents are feeling hurt, it is still your responsibility as parents to make arrangements for your children.  It is you, the parents who know your children best and it is crucial to try and set aside disputes about who is to blame for the end of the relationship, financial difficulties and worries about the future and focus on ensuring your children enjoy a quality relationship with you both.  

As parents your lives will be forever intertwined through your children.  You can end your relationship but you will still need to raise your children together and particularly when your children are young, you will need to find an effective way to communicate and to effectively co-parent to enable you provide them with the stability and nurture they need to grow and thrive.  Even as your children get older, your lives will remain interconnected with graduations, weddings and possibly grandchildren to enjoy alongside one another one day.  

What is a Parenting Plan?

A Parenting Plan is a written agreement worked out between parents after they separate and it covers the practical issues of co-parenting, providing a framework for discussions and an opportunity to detail the arrangements which suit your own individual children’s needs. 

Is a Parenting Plan legally binding?

A Parenting Plan is not legally binding, it is however possible to make it into a legal document by asking a solicitor to formalise it into a “consent order”.  

Whilst a Parenting Plan does not carry the same status as a court order relating to the children, in the event that at a later stage there was a disagreement which resulted in an application to the court, an agreed parenting plan would be taken into consideration.

How do I make a Parenting Plan?

How you agree a parenting plan will depend on your personal situation.  If you are able to meet face to face to sit down together and chat through the practical arrangements that is great, however that is simply not possible for everyone.  For some people it would be inappropriate to meet up in person, particularly in cases where there has been domestic abuse, or where one individual may feel intimidated by the other. Or, as is often the case, emotions can be too raw at the beginning of the separation process for you to have a constructive conversation about day to day issues.    Involving a professional in the process such as a mediator can be really helpful.  They will be able to facilitate conversations, keeping you focused on the main issues and ensure you both are heard and they can  help you find a way forward.

What should I put in the Parenting Plan?

Each parenting plan should be unique to the family it relates to.  All families are different and as parents you know what your children need best.  I recommend that you use a template as a starting point and edit it to suit your individual needs. I strongly recommend you visit the Cafcass website for further information and a parenting  plan template.

https://www.cafcass.gov.uk/grown-ups/parents-and-carers/divorce-and-separation/parenting-together/parenting-plan/

When starting to consider your parenting plan, bear in mind that the separation process is not straightforward or quick, it is likely to take many months to disentangle your relationship, to resolve all the financial matters and for both parents to sort out their own long-term living arrangements.  Take the plans for your children one step at a time, focussing first on the immediate short term arrangements, then looking at the medium term and longer term once your family finances and longer term arrangements are in place.  Your plan can and should change as your family adjusts and you find the best way to coparent.

When preparing your parenting plan you need to consider the following

1. Living and Childcare Arrangements

One of the big decisions you will need to make will be whether there will be a main place that the children live and how much time they will spend with each parent.  An agreement is also needed as to how you should share time with the children during the school holidays and for special occasions. Term-time and holiday time may look very different.   Get hold of the school calendar and consult it, it can often come as a shock to a parent who is not so involved in the day to day care as to how much time the children do not spend in school and thought needs to be given as to how this will be shared.  Often special occasions can be a source of conflict, if you find this a sticking point a simple way to deal with them is to alternate them eg. you have your children for Christmas Day this year, next year they will be with the other parent.   

You should also give some thought about the practical arrangements of pickups and dropoffs and how the children’s clothes and belongings will be exchanged. Will separate clothes be kept at each home or will items travel back and forth? Who will wash the school uniforms?  These relatively minor issues can be a source of real difficulty later as one parent grows frustrated with the other.  An early agreement about what is expected can save difficulties later on.  

Your arrangements also need to take into account the children’s usual activities and social lives.  Check that the arrangements enable the children to continue to see their extended family as maintaining those relationships is important and they can be a source of continuity and comfort to the children during the disruption of their parents’ separation.  Don’t be afraid to ask friends and family to help with the arrangements, a grandparent doing a pickup or dropoff for an initial period on behalf of a parent may avoid the potential for parental conflict when emotions are running high during those early days.

2. Money and the Children

Once you have agreed where the children are going to be spending their time on a day to day basis you need to consider how you will both support the children financially. How can you share day to day costs for clothes, school trips, music lessons etc? If financial issues are being resolved as part of the divorce process this can be a tricky issue to address in the early days.  Whilst the long-term financial position is unclear, I suggest you focus on making short term arrangements at this stage putting the conflict about the long-term arrangements to one side and prioritising the children’s immediate needs. 

You should build in annual reviews as your financial positions and children needs change.   You may wish to consult the Child Maintenance Service website to explore how they would calculate child maintenance if an agreement can’t be reached between parents.

https://www.gov.uk/child-maintenance-service

3. Your Children’s Education

You will need to notify the children’s school about the changes at home.  It is important you update contact details on their records to ensure you both receive communications and updates from the school and the school also know who the first contact is in an emergency.  You will also need to review the contact details held by your GP, dentist etc.  

Take a pause and consider whether there any big decisions required shortly in relation to education as you don’t want to forget closing dates for any school applications etc. With all the disruption you are currently experiencing it is easy to overlook sending in an application. Even if a school choice is a few years away, if you are in agreement now  it may be worth recording the intention in your parenting plan and who will be responsible for the application to avoid confusion and potential conflict later. 

It is really worth considering  putting in place  some therapy or counselling for your children.  The breakdown of their parents’ relationship is a big change for children and putting extra support in place for them can be really beneficial in the longterm. If your children are upset and distressed this will add significant more stress to your separation.  If possible, try and take this further and consider individual therapy for both parents and  family therapy.  I appreciate that the expense for counsellors and therapists comes at a time when family finances are likely to be stretched, however, it will benefit you all if your family finds a way to get through the separation process in as positive way as possible and able to communicate effectively about your feelings and wishes going forward.  

4. Communication

Particularly in the early days of separation, it is sensible to set out ground rules about communication. Emotions are raw and discussions about child arrangements can quickly turn into arguments about finances and the separation which are best avoided.

With the exception of emergency situations, at least to begin with, contact should be strictly limited to what is necessary and take place via email where possible.  Keep communication about the children to just that topic, don’t allow yourself to stray in to finances, your relationship etc, deal with that separately.  You need to put clear boundaries in place so that you can communicate about the children effectively and with time this will become easier. My preference for email is that I find people tend to think more carefully when writing an email than when firing off What’s App and text messages.

Define what constitutes an emergency and ensure you answer your phone when the other parent calls with an emergency.  Some discussion on this topic helps set expectations, do you expect a call if the child has a fever, a doctors appointment?  Understanding what the other parent anticipates wants to be informed about will prevent difficulties and misunderstandings later. 

You will need to find an effective way to communicate routinely about the children.  Thankfully there are an array of products to assist such as handover books and apps.  These are really worth investing in, particularly in the early days until things settle into a routine and you find your own way forward.

5. Other issues

There will be an array of matters to consider which will be unique to your family which I have not mentioned here such as religious education , medical decisions, boundaries in relation to bed time and school work etc.  I have linked to the Cafcass template above which should help identify things that might crop up but ultimately it is you and the other parent who know what is most important for your children and where decisions and boundaries need to be recorded.  

Running through potential future issues at an early stage before they have arisen can help you discuss matters more objectively.  If you have a professional involved all the better, take advantage of their input and deal with future difficulties early.  One major future issue will be new partners and how and when they will be introduced to children.  It will be easier to discuss this whilst it is  still a hypothetical scenario rather than later when it becomes a reality and a likely emotive topic. 

6. Reviews

Your parenting plan will need to be reviewed regularly as your children and their needs will change with time.  Timetabling a regular review is helpful such as once a year (around the time school calendar comes out is helpful as you can plan the future arrangements around school holidays etc.). In addition to setting out the holiday arrangements for the year, it will give you a chance to discuss any big decisions in relation to the children that are coming up and discuss what is working well or what could improve. If you find meetings or discussions difficult you can continue to make use of a mediator to facilitate this. 

Agreeing a Parenting Plan may initially appear overwhelming but my experience is that setting out clear arrangements for the children early on will benefit the whole family and minimise scope for conflict going forward.  The use of a professional mediator will really be of benefit to help your discussions.  If an agreement can’t be reached and legal proceedings are necessary to obtain a child arrangement order, this will be far more costly, stressful and slow than the initial investment in a mediator. 

Let me know if this has been helpful, DM me and I will do my best to answer any other family law questions you have.

Choosing the right solicitor for your matter is crucial and we therefore offer a free initial consultation so that you can find out more about our services and decide whether we are the right fit for you. 

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family law, parenting, family court, contact order, child arrangement order, residence order

Apply for a Child Arrangement Order without a lawyer – in England and Wales

This is a really tricky topic to briefly cover in a post like this as cases vary so much and the issues are often complex. It has however also been the issue most followers have asked me to cover so I’ll do my best.  I’ve put links to helpful resources at the bottom which you should check out if you want to pursue this further.

Whilst ideally everyone would be legally represented when applying for an order in relation to their children, many are unable to afford legal representation and are not eligible for legal aid. 

Legal aid is still available in family cases  in very limited circumstances you can find out more here:

https://www.gov.uk/legal-aid

If you aren’t eligible for legal aid and worried about legal fees you may want to explore less traditional legal representation. Some solicitors offer “pay as you go” schemes, they don’t go on the court record as formally representing you but you can have one off meetings where the can advise you and they can assist you prepare key documents. 

You can also obtain legal representation for just the hearings, doing the preparation work yourself. Some solicitors provide this service and barristers do this via “direct access”.

The court does not require you to have a lawyer, you can make an application on your own and the family court is used to this as more and more people are appearing unrepresented. 

The process can be daunting and you need to be prepared to put in the work to prepare your case.  Reading up on relevant law and procedure will help you prepare a coherent case.  You also need to be able to look at matters objectively, this can be the most difficult aspect as it is inevitably such an emotional matter and the support of a sensible and honest friend or family member can be invaluable to help you take a step back and review things.

Mediaton (MIAM)

Before you can make an application both parties are required to have attempted mediation in order to resolve the issue.  There are limited exemptions to this requirement such as cases where there is domestic abuse. Many parents feel that mediation is just a hoop to jump through however I  disagree, it is a really important first step.  If you are able to resolve your dispute through mediation and avoid going to court you will save your child, yourself and family a lot of stress and time.  Court proceedings are slow, difficult and highly emotional for all involved.  It is always worth attempting mediation where possible.  Even if it is not successful, it may assist in narrowing the issues in dispute or assist in reaching a short-term agreement until the court makes an order.  Even if the other party says they will not attend, unless an exemption applies you still need to make the effort alone to engage with mediation as the court will require evidence that it has been attempted by way of a signed form from the mediator. 

There is more information about mediation and how to find a mediator here: 

https://www.familymediationcouncil.org.uk/family-mediation/

If mediation is unsuccessful or you are exempt it is at this stage you  can make an application to the court for an order. 

Application to the Court 

What orders are available from the court?

1.Child Arrangements Order: This can be a live with and/or spend time with order. (These used to be referred to as residence and contact orders.

2. Specific Issue Order.

3. Prohibited Steps Order.

If you disagree with the other parent about where your child lives and/or how much time they spend with each parent you may wish to apply for a child arrangements order.  If you cannot agree on a specific issue such as education or medical treatment you may seek to apply for a specific issue order.  If you want to prevent the other parent from doing something such as removing the child from the jurisdiction you may seek to apply for a prohibited steps order.

How to make an application to the Court.

An application is made on Form C100 and an additional Form C1A can be completed if there is a risk of harm. If you want to keep your address and telephone number private from the other party you can submit an additional form C8.

https://helpwithchildarrangements.service.justice.gov.uk/going-to-court

https://www.gov.uk/looking-after-children-divorce/apply-for-court-order

You can apply online or via a paper application (if you apply online the risk of harm application and confidential contact details will automatically be incorporated into the application if relevant.)

My personal preference is the online application, you can come back to it later so can complete it over a few days.  It is harder to go wrong and miss key information that is required so it is less likely you will make an error that will result in your application being returned. In addition the applications are processed more quickly than the paper versions. If you application is very urgent (requires a hearing within the next 3 days) call your nearest family court and find out how they would like you to get your application to them.  Try and get a specific contact there who you can speak to to ensure the application has been received and processed as urgent. Local procedures vary so it’s worth checking with your local court their own procedures from very urgent matters.

Completing the application 

Before you start the application make sure you have key details ready as it can be frustrating and off-putting looking for details as you go along. You need basic information about all involved in the case, yourself and the other party or parties (this is usually the other parent or anyone with parental responsibility) including their date of birth, place of birth, address (for the last 5 years), email and contact number. You will need the child’s full name, date of birth and details of any social services involvement or any other linked proceedings.  If any of the information is unavailable to you, don’t panic, just complete the form as best you can.  Contact details are needed so that the court and other professionals can get in touch with all involved about the case so do your best to make sure accurate up to date information is included.

It is really helpful to prepare a chronology and history document for yourself to refer to as the proceedings progress.  This is not something you would share with anyone else, rather  it is your working document where you can keep track of key dates and information in one place and refer to it and update it as you go along.  It will also be useful if you later have to prepare a statement.

There isn’t much room on the form to set out the entire background to the case, the application is not meant to be a full statement or history of the case, rather a summary to identify key issues.  It can be tricky to be concise about what has happened and what you seek and it may take you a few attempts to prepare something which you will feel is appropriate.  Ultimately any decision the court makes in the case will be based on what is in the child’s best interest (what they think is best for the child).  Summarise the dispute briefly and any key dates or events. 

There is a court fee payable of £232, this is a one-off fee to lodge the application and issue the proceedings. You don’t have to pay for court time etc as the case progresses no matter how long the proceedings take.  You may have to pay a further fee if a further application is required within your proceedings for something that doesn’t fall within your initial application, if this happens the court will let you know.

There is help available to pay the fee for those on low income, find out more here:

https://www.gov.uk/get-help-with-court-fees

What happens next?

If your application is time sensitive or urgent, I strongly recommend you follow it up with a call to the family court to ensure it is swiftly processed.  The courts are overloaded and applications can get lost in the system to it is worth confirming timescales etc for your own peace of mind.

Once the application has been processed you will receive some formal documents from the court, this will include  a sealed (formally marked) copy of your application,  the hearing date and any directions (instructions) from the court about what must be done next and when.  Read them carefully, they are legal documents and missing a key date can cause significant problems. This is when you really need to get organised, get a diary for the key dates, a folder for the important documents.   Make a note of the key dates and your case number as you will likely need to refer to these frequently.

The other party will also receive a copy of the documents, if you haven’t told them about your application they will find out when the paperwork arrives from the court. 

Cafcass

Prior to the first hearing you and the other party will be contacted by someone from the Children and Family Court Advisory Service (Cafcass).  They will carry out safeguarding checks (checks with the police and social services) to see if there are any known safety or welfare issues.  They will usually speak to you and the other party over the telephone to find out about your application and to identify any welfare concerns.  Shortly before the hearing they will “file” that is send the court and the parties a safeguarding letter which is a short report on their enquiries and the outcome of the safeguarding checks and any initial recommendations to the court. 

First Hearing – FHDRA (First Hearing Dispute Resolution Appointment)

If no safeguarding or welfare concerns have been identified by Cafcass, efforts will be made at the first hearing to encourage you and the other parent to reach an agreement. If an agreement can be reached at court this can bring an end to the proceedings and the agreement can be recorded in a legal document called a consent order.

If an agreement cannot be reached or if there are welfare or safety concerns the court may:

  • Order the parties to take part in a Separated Parents Information Programme (SPIP)
  • Refer the parties to a mediation assessment or ask Cafcass to help the parties reach an agreement
  • Order a finding of fact hearing if disputed allegations have been made that might affect the outcome of the court process such as allegations of domestic abuse
  • Where there are concerns about domestic abuse, or domestic abuse is found by the court to have taken place, the court can order a party to take part in a domestic abuse perpetrator programme
  • Ask Cafcass to carry out more detailed work with your family and to write a report about the child’s welfare known as a section 7 report.

Helpful resources:

If you intend on issuing proceedings without legal advice, please do some homework first so that you can prepare your case properly.  I’ve put together a list or resources below which you may find helpful:

  1. Government website which sets out details of children applications, fees, how to complete the form etc. You can complete your application online here

https://www.gov.uk/government/publications/form-c100-application-under-the-children-act-1989-for-a-child-arrangements-prohibited-steps-specific-issue-section-8-order-or-to-vary-or-discharge

2. Cafcass – Divorce and separation for parents

https://www.cafcass.gov.uk/grown-ups/parents-and-carers/divorce-and-separation/

3. Child law advice – contains a wealth of information about proceedings and what to expect and do at each stage. 

http://childlawadvice.org.uk

4. Resolution 

http://resolution.org.uk

5. Government legal aid website

https://www.gov.uk/legal-aid

6. Family mediation council

https://www.familymediationcouncil.org.uk/family-mediation/

7. Family Procedure Rules

https://www.justice.gov.uk/courts/procedure-rules/family/rules_pd_menu

8. The Children Act 1989

https://www.legislation.gov.uk/ukpga/1989/41/contents

Choosing the right solicitor for your matter is crucial and we therefore offer a free initial consultation so that you can find out more about our services and decide whether we are the right fit for you. 

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Can My Ex-Partner Stop Me From Seeing My Child?

It is so common to see children being used as weapons when relationships breakdown with one parent preventing the other from seeing a child. I have worked with many parents who have been stopped from seeing a child for extend periods of time by an ex partner, sometimes due to genuine concerns and on other occasions due to malicious and false allegations.

What should I do if I am prevented from seeing my child?

If there is no court order in place setting out the child arrangements, you should attempt the following:

  • Discuss the problem with your ex-partner and try and resolve it without confrontation.  Is there a mutual friend or family member that could assist?  (If there is a non-molestation order in place this will not be appropriate).
  • Consult a family solicitor who can advise you on next steps and write to your ex-partner to set out your concerns and proposals;
  • Refer the matter to a mediator who could assist resolving the situation with your ex-partner;
  • Apply to the court for a child arrangement order. (More on this below).

If there is already a court order in place an application can be made to the court to enforce it.

When can contact with my child be stopped?

Legally your ex partner cannot stop you from seeing your child unless access will be of detriment to your child’s welfare, safety and welfare concerns include things like criminal activity, domestic abuse, drug/alcohol misuse or other inappropriate behaviour that puts your child at risk.

However, until a court order is in place to determine what the child arrangements are for the children it is up to parents to agree the arrangements. Where child arrangements cannot be agreed, particularly where children are not able to see a parent at all, an application should be made to the Court without delay.

If a parent is stopping contact with you because of  alleged welfare concerns they can seek a child arrangement order which confirms the child lives with them and doesn’t have contact  with you.  An urgent application can be made to the court without you being there to respond if the parent applying believes there is an immediate danger to the child.   This is known as a “without notice order”.  The parent making allegations will need to provide evidence to the court to support their case, this may include information from the police, social services, medical professionals or witness statements from third parties.

If you find yourself subject to a “without notice” hearing, do not panic, there will always be a second hearing in the court a few days later which you can attend and defend the allegations made in your absence and present your own views to the court.

A parent who stops contact may not make an application to the court.  If that is the case,

you should make an application for a child arrangement order to have contact with your child straight away as it may take some time for the court to hear your case and any delay means further time you may not be able to see your child.

Do I have a right to see my child?

It is important to bear in mind that a parent doesn’t actually have a “right” to see their child.  Parental responsibility gives you legal rights and responsibilities but no right to contact.  The law in relation to child arrangements is entirely based on the child’s welfare and therefore decisions the court makes about child arrangements are based on the benefit to the child from seeing you, not because it will improve your quality of life as a parent.  However, there is a legal presumption that the continued involved of both parents in a child’s life will best promote that child’s welfare, therefore  in the absence of any safeguarding concerns, the court actively encourages a relationship between a child and both of their parents.

Can I make an application for an order if I don’t have parental responsibility?

As a parent, even if you don’t have parental responsibility you can still apply to the court for a child arrangement order.  The court should consider whether it is appropriate to make a parental responsibility order when dealing with the other orders.

What will the court consider?

When making decisions in relation to your child and the appropriate arrangements the welfare of your child is the only thing the court will consider.  It may be necessary in a case where allegations regarding the child’s safety and welfare have been made for the court to consider these fully before it can move on to the welfare questions.  For example, if an allegation has been made that contact is not safe to take place because it is alleged that you have assaulted your ex-partner or child, the court will need to make a determination as to whether this happened, that is make a “finding” in relation to these contested issues before it can decide if and how contact can take place.  Sometimes it is necessary for a “fact finding” hearing to take place during the first stage of the case and it is those “findings” which will determine how the court will make future decisions about your child.

It is important to note that legal proceedings are likely to take some time and involve a number of hearings, so you need to be prepared for a number of court attendances during the process.

What the court must take into account when considering your child’s welfare is set out in the  “welfare checklist” and includes the following:

  • The wishes and feelings of the child concerned (in light of their age and understanding);
  • The child’s physical, emotional and educational needs;
  • The effect a change of circumstances may have upon them;
  • Age, sex, background and any characteristics which the court considers relevant;
  • Any harm that the child has suffered or is at risk of suffering;
  • How capable the parents are of meeting the child’s needs.

What sort of order can the court make?

The child arrangements contained in the order vary in each case and the requirements will be set out specifically for your family.  It should include where your child lives and how often they spend time with the other parent.  (These used to be called residence and contact orders).  In addition the child arrangement order, can include the following:

  • arrangements for indirect contact which would include things like telephone calls or video calls;
  • specific details such as where, when and how handover take place;
  • an agreement not to speak badly of each other in front of the children;
  • arrangements for holidays and trips abroad;
  • who is responsible for keeping and renewing the child’s passport;
  • how the parents are to contact each other in an emergency situation;
  • how the parents will keep each other informed and updated in relation to the child.

What is included in the order really depends on your individual circumstances and ability to communicate with each other. My preference is to have the least draconian order as possible in order to allow flexibility and variation when needed, however this is not suitable in particularly acrimonious cases.  Where there is a history of really difficulties a more prescriptive order can assist with keeping the arrangements on track.

If you found this blog helpful please let me know.

If you have any family law issues you would like me to address in a blog please feel free to contact me.

Choosing the right solicitor for your matter is crucial and we therefore offer a free initial consultation so that you can find out more about our services and decide whether we are the right fit for you. 

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Who can register a baby’s birth?

Following the birth of a baby, there is a lot of admin involved!

Whilst your main focus is caring for this new little person, you are legally required to register your baby’s birth within 42 days of the birth at the local registry office. The requirements for registering a birth and how the parents acquire parental responsibility differs depending on the status of their relationship and their sex, so I have gone into this in some detail below.

Parental responsibility is really important. Whilst the birth mother automatically has parental responsibility from the birth, it is the second parent who must ensure that they are properly registered.If you want to be recognised as your child’s parent it is crucial you ensure that you acquire parental responsibility and if you have any doubts get legal advice so that this is done properly.

Same-sex female couples

Female couples can include both their names on a child’s birth certificate when registering the birth and can therefore both have parental responsibility.

Same-sex females who are married or in a civil partnership

Either parent can register the birth on their own if both of the following are true:

  • the mother has a child by donor insemination or fertility treatment; and
  • she was married or in a civil partnership at the time of the treatment.

They will both have parental responsibility in this scenario.

Same-sex females who are unmarried or non-civil partner parents

When a mother is not married or in a civil partnership, her partner can be seen as the child’s second parent if both women:

  • are treated together in the UK by a licensed clinic; and
  • have made a “parenthood agreement”

However, for both parents’ details to be recorded on the birth certificate they must do one of the following:

  • register the birth jointly; or
  • complete a “statutory declaration of acknowledgement of parentage form” and one parent takes the signed form when she registers the birth; or
  • get a court order giving the second female parent parental responsibility and one parent shows that order when she registers the birth.

There is a link to the “statutory declaration of acknowledgement of parentage form” below.

Same-sex male couples

Male couples must get a parental order from the court before they can be registered as parents.

There is a link to a “parental order” form below.

Opposite-sex couples

Opposite-sex parents who are married or in a civil partnership

Either parent can register the birth if they were married to each other in a civil partnership together at the time of the birth. Opposite-sex couples and those who are married or in a civil partnership automatically have parental responsibility when the child is born, they don’t need to be on the birth certificate to obtain this.

Opposite-sex parents who are not married or in a civil partnership

The details of both parents can be included on the birth certificate if:

  • they sign the birth register together (they will both need to be present); or
  • one parent completes a statutory declaration of parentage form and the other takes the signed form to register the birth; or
  • one parent goes to register the birth with a court order giving the father parental responsibility.

It is important that both parents attend the registration, if the mother attends alone the father’s details cannot be registered. It may however be possible to add them on later by registering the birth.

Helpful links:

Statutory declaration of acknowledgement of parentage form:

https://www.gov.uk/government/publications/statutory-declaration-of-acknowledgement-of-parentage-form

Application to re-register a birth and add the father’s details:

https://www.gov.uk/government/publications/application-to-re-register-a-childs-birth-and-add-the-natural-fathers-details

Details on how to get a parental order:

https://www.gov.uk/legal-rights-when-using-surrogates-and-donors/become-the-childs-legal-parent

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Does it matter if a father is named on a child’s birth certificate?

YES!

I’m often asked if it really matters if a child’s father or other parent is named on their birth certificate. In the chaos of bringing home and caring for a new baby, a trip to the registry office can fall down the list of priorities, but it is important to make sure the birth certificate is fully completed properly.

Being named on a birth certificate or not can have a big impact on a parents “parental responsibility” which I have discussed in a previous post. In brief, parental responsibility is really important, it is the legal rights and responsibilities of a parent.

You need to register your baby’s birth within 42 days of the birth at the local registry office. Most hospitals are pretty good at giving you instructions for your local process at discharge, if in doubt check your Local Authority’s website.

I am going to be addressing the position for opposite-sex couples in this blog. It is slightly different for same-sex couples, which is dealt with in the “Who can register a baby’s birth?” blog.

If the mother and father are married or in a civil partnership at the time of the child’s birth the father automatically acquires parental responsibility when the child is born.

Difficulties arise when the parents are not married nor in a civil partnership. In that scenario, the father does not automatically acquire parental responsibility, if he is not named on the birth certificate he isn’t legally recognised as the father. This has the potential do cause real difficulties for him if he wants to play a role in his child’s life.

Can the father be added to the birth certificate later?

Yes.

How this is done will depend on whether the mother agrees to his name being added and the birth re-registered. This is only relevant for unmarried, non-civil partners.

If the mother is in agreement, the birth certificate can be re-registered with the General Register Office (GRO). The mother and father will need to provide a statutory declaration to the GRO from the mother confirming that the father is the child’s father.

You can get the statutory declaration form here:

https://www.gov.uk/government/publications/statutory-declaration-of-acknowledgement-of-parentage-form

If the mother is not in agreement to the father being added, the father will need to make an application to the court seeking a declaration of parentage. This may involve a DNA test being undertaken to establish paternity if this is not accepted. Once established, the court will notify the GRO and the birth certificate will be re-registered including the father’s details. Father will not acquire parental responsibility in this case but will need to take a further step.

Parental responsibility agreement

A parental responsibility agreement (PRA) is made between the child’s father and mother and will provide the father with parental responsibility when the parents are unmarried or not in a civil partnership. A PRA is only needed where the father isn’t named on the birth certificate or his name was added via re-registration following a declaration of parentage from the court. A PRA can only be made if both parents consent to it. Once made it should be submitted to the court and then sent to the GRO.

You can get the parental responsibility agreement form here:

https://www.gov.uk/government/publications/form-cpra1-parental-responsibility-agreement

Parental responsibility order

A parental responsibility order is made by the court and will provide the father with parental responsibility. It is only necessary where the father is not named on the birth certificate and the mother is unwilling to either re-register the birth certificate with the GRO or lodge a parental responsibility agreement with the court. If a declaration of parentage has been made by a court then a parental responsibility order will also be required to give the father parental responsibility.

Details on how to apply for a parental responsibility order can be found here:

https://www.gov.uk/parental-rights-responsibilities/apply-for-parental-responsibility

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Cohabitation agreements

What is a cohabitation agreement?

Couples who live together, or are planning on living together can enter into a cohabitation agreement to set out their intentions in relation to their finances. A cohabitation agreement can set out who owns existing assets, including property and what your intentions are in relation to your day to day finances such as who should pay for what. It should also deal with how you would like any assets to be shared in the event that your relationship comes to an end.

Cohabitation agreements are important as couples who aren’t married do not have legal rights like those couples who are married or in a civil partnership. There is very little legal protection for unmarried couples who separate (disputes are usually dealt with under civil rather than family law) which can leave those couples who have lived together or shared joint assets in a very difficult and uncertain situation when they separate.

Why do I need a cohabitation agreement?

Many people misunderstand the legal position when they are in a lengthy cohabiting relationship and believe that their relationship is recognised by law and that they have somehow creates a “common law marriage”.

This is entirely false, the only couples protected under divorce law are those who are legally married or in a civil partnership.

Many others are getting on with life without giving too much thought to the legal status of their relationship. However, unfortunately when unmarried couples separate, the consequences can be financially devastating and cause significant difficulties for them going forward.

A cohabitation agreement offers security to both individuals in the relationship as to what will happen in the event of your separation. During the process of preparing a cohabitation agreement you will set out clearly your financial commitments to each other and avoid any misunderstandings with regards to own owns assets including any properties. The purpose is to avoid difficulties and disagreements in the event your relationship comes to an end.

What are the benefits of having a cohabitation agreement?

A cohabitation agreement will be extremely valuable in the event that your relationship does later break down. A little foresight and planning during the early stages of your relationship can offer certainty and peace of mind as well as other advantages:

  • Entering into a cohabitation agreement gives you the opportunity to review your finances and how the day to day household budgets etc will operate. It enables you to plan “how” you will live together so you are both clear who is responsible for what. This sets you off in your living arrangements from an informed and planned position so you both are clear who should be contributing to what.
  • A cohabitation agreement enables you to protect yourself from the financial repercussions in the event that your relationship ends. It can offer financial security in relation to how property and assets should be retained or shared in the event that you later separate.
  • A properly drafted and executed cohabitation agreement reduces the possibility of disputes at the end of a relationship. Disputes in relation to the ownership of a property following a period of cohabitation are extremely complex and expensive. A clear agreement reduces the change of litigation.

My partner pays for most things, do I need a cohabitation agreement?

A cohabitation agreement makes it clear who owns what and your intentions in the event you separate. It can offer protection to an economically weaker partner. For example if you are a parent who has stopped working in order to care for the children but the family home is in your partner’s name, your contributions in looking after the home and caring for the children can be recognised in the agreement and make provision for you in the event your relationship breaks down. In the event that you did not have a cohabitation agreement, it is likely you would be left with no legal share of the property of financial support from your partner.

I contribute much more than my partner, do I need a cohabitation agreement?

Yes, it is important you consider the arrangements in order to protect your wealth and assets in the event your relationship breaks sown. A formal agreement can make it clear which pre-owned assets are to remain yours and which are to be shared with your partner. If the property you live in is in your sole name, it is important that you ensure your legal interest is properly recorded and secured to avoid any contributions made by your partner unintentionally being considered as giving them a legal interest in the property.

The purpose of the cohabitation agreement is to provide you both with security and certainty in order to avoid disputes if your relationship comes to an end.

Is a cohabitation agreement legally binding?

A properly drafted and executed cohabitation agreement is a legal document which can be enforced by a court. It is really important that you both take separate independent legal advice on the agreement and that you are both open and honest about your finances if you want it to be upheld.

Cohabitation agreements are governed by ordinary rules of contract law and can therefore only be challenged on any of the ordinary contractual principles such as fraud, duress, undue influence, misrepresentation or mistake.

In order for a cohabitation agreement to be valid the following must apply:

  • You should both enter into the agreement freely and voluntarily;
  • The agreement should be set out in the form of a deed;
  • Each of you must sign the document;
  • You must update the agreement with any major life changes.

How do I make a cohabitation agreement?

Both you and your partner should seek advice from separate solicitors in order to prepare a cohabitation agreement. Whilst you can and should of course agree the position between yourselves, in order that the agreement is prepared and properly executed so that it is legally binding it is important it is prepared by a solicitor with experience in this area.

Whilst you may been able to find templates online it is much better to have bespoke agreement professionally prepared for your situation. In addition, for the agreement to be upheld in court, it is important that you have both sought independent legal advice on the contents of the document to ensure you both understand it and there are no errors in the contents.

I understand that the cost of preparing a cohabitation agreement can be off putting, however the cost of dealing with a dispute at the end of your relationship will be much higher and could result in lengthy and expensive legal proceedings.

What should I include in a cohabitation agreement?

Each cohabitation agreement will be unique and prepared to meet your individual circumstances however there are some key issues which you will likely want to cover:

Property

If either party owns a property before you move in together or you intend to purchase a property together it is really important to seek legal advice about how property should be owned.

You may want to make it clear that a property owned by one person prior to the relationship is to be kept separate to prevent a claim later being made over it. This is particularly important where you intend to cohabit in a property owned by just one of you.

If you buy a property during your relationship and it is owned by just one of you, again you will need legal advice as to how to structure this to avoid a later claim.

A jointly owned property will also require some consideration, how will payments for mortgage, maintenance and improvements be made and how will the property be dealt with if you separate.

It is important that you consider where you will both live in the event of your relationship ending. If you jointly own a property then you will be both entitled to stay there at the end of your relationship, what exactly happens to the property will need to be decided by you so you should put in place a plan as to how you would deal with that tricky situation.

Day to day living expenses

You need to consider how you will each contribute to the mortgage, running of your home and the household bills. If you do not jointly own your home legal advice will be required to clarify what the contributions of the non-owner will entitle them to in order to avoid inadvertently changing their legal relationship to the property.

You should also consider how bills and accounts set up in your joint names will be dealt with if your relationship ends.

Wills and inheritance

It is really important for unmarried couples to ensure that they have up to date wills. Whilst there is legislation in place to protect married couples in the event of the other’s death there is nothing similar in place for cohabitants and this can have devastating consequences.

You will not automatically inherit each other’s estates in the event of one of you dying, it is therefore crucial if you want to leave anything to your partner that you have an up to date will.

Whilst the cohabitation agreement can reflect your intentions it does not replace a will and you should therefore take the opportunity to have an up to date will prepared at the same time as the cohabitation agreement.

Can I prepare my own cohabitation agreement?

Whilst you can find templates online they are unlikely to be as comprehensive as obtaining your own bespoke document. In order for the agreement to be legally binding you must both obtain independent legal advice on the agreement. It makes sense if you are instructing a solicitor anyway to have them involved in the drafting process to ensure that the agreement is comprehensive and legally binding.

Can I change the cohabitation agreement after it has been prepared?

Yes and you should review it regularly. It is important that you update the agreement if anything significant happens during the course of your relationship. This includes things like:

  • Having children;
  • Ill health;
  • Changes in either of your financial situations;
  • Receipt of a large inheritance;
  • Purchase of a property;
  • You plan on getting married or entering into a civil partnership.

When should I make a cohabitation agreement?

A cohabitation agreement can be prepared at any time during your relationship. This may be before you begin living together or after many years of cohabiting.

It is important that the document is regularly updated following any major life events such as, having children, ill health, a change in either of your financial situations, receipt of a large inheritance, if you purchase a property or if you plan on getting married or entering into a civil partnership.

Does a cohabitation agreement have to be signed?

Yes. In order to be binding the document must be prepared as a deed and therefore be signed. In addition, both parties should receive independent legal advice and the document must be kept up to date.

What is the difference between a cohabitation agreement and a declaration of trust?

A declaration of trust relates to a specific property. It is a formal document which records how the proportions of a property are held and how any proceeds of sale would be divided if the property is sold in the future. It should be prepared by a solicitor and it will take into account your initial contributions when purchasing the property, who will pay the mortgage, how any increase in value will be attributed after making any home improvements such as an extension.

A cohabitation agreement is much broader. You may have a declaration of trust prepared in addition to the cohabitation agreement. A cohabitation agreement rather than just reflecting the legal ownership of the property will set out your intentions in the event of your separation (where each of you should live, if the property should be sold and if so how), it will also deal with day to day expenses such as the household running costs, repair and maintenance.

What is the legal position if my partner owns the property that we both live in?

If only one of you owns the property you both live in, a cohabitation agreement will set out your intentions and respective rights to the property which will make understanding what you are each entitled to in the event of your break up more straightforward. You may also want to consider a declaration of trust to reflect the legal position of the ownership of the property.

Without a declaration of trust and cohabitation agreement having been prepared, there is a possibility that the non-owning spouse could claim a “beneficial interest” in the property. This means that a court could find in the event of your separation that the non-owning spouse is entitled to a share of any proceeds from the sale of the property, a share of any rental income or are entitled to continue living there.

If I have a cohabitation agreement do I need a will?

Yes. Whilst you can outline your wishes in the event of your death within a cohabitation agreement you should also ensure that these are reflected in an up to date will.

It is absolutely crucial that unmarried couples have up to date wills if you want your partner to inherit your estate if you die.

How much does a cohabitation agreement cost?

The cost of a cohabitation agreement will vary depending on the complexity of the affairs of the couple involved.

You will each require your own independent solicitor in the matter and typically one solicitor will take the lead with the work. Both of you will meet with your solicitor separately to discuss the case, they will advise you on your position and the contents of the agreement. The lead solicitor would take responsibility for preparing the agreement with the second solicitor reviewing it to make sure it is fair to their client.

The fees will vary between £600 and £3000 (plus VAT) depending on the complexity of the agreement to be prepared. The fees for the second solicitor should be less for the separate advice that they provide.

Whilst the cost may seem expensive. it should be considered an investment to protect your financial position in the event of your separation. Disputes following a period of cohabitation which are pursued through the courts are complex and expensive.

Choosing the right solicitor for your matter is crucial and we therefore offer a free initial consultation so that you can find out more about our services and decide whether we are the right fit for you. 

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What is Parental Responsiblity?

Parental responsibility is really important. It is the legal rights and responsibilities a parent has for a child and what gives legal recognition to you being a parent.

If you have parental responsibility you will be responsible for:

  • Providing a home for your child;
  • Protecting and maintaining your child (although parents without parental responsiblity also have a duty to financially support thier child)
  • Choosing and providing for your child’s education;
  • Making decision in relation to your child’s medical treatment;
  • Naming and agreeing to any change of name;
  • Looking after your child’s property.

Exercising parental responsibility, that is making decisions about your child should be done in agreement with all others with parental responsibility. This is usually straightforward if you are in a relationship with the other parent, however for separated parents it can be challenging.

Parental responsibility and separated parents

Having parental responsibility for a child you do not live with, does not automatically mean you have a right to spend time with them. However, the parent with who the child lives must consult others with parental responsibility when making major decisions about your child.

You do not need to be consulted about each day to day decision, however when it comes to important matters such as schooling or moving abroad, both parents should reach an agreement. It is sensible to record this in writing.

If an agreement can’t be reached you can apply to the court for a specific issue order or a prohibited steps order.

You can find out more about this and get the relevant court forms here:

https://www.gov.uk/government/publications/form-c100-application-under-the-children-act-1989-for-a-child-arrangements-prohibited-steps-specific-issue-section-8-order-or-to-vary-or-discharge

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New legislation raises minimum age to marry to 18 in England and Wales

Previously people (children) could get married at 16 to 17 as long as they had parental consent.

This new law applies to regulated marriages as well as unregulated ceremonies that are not registered with the local council.

The penalty for adults who facilitate the marriage of an under 18 includes up to 7 years imprisonment and a fine.  The penalties do not apply to any children involved. 

Significantly the rules are to apply to marriages abroad so will include adults who take children out of this country to facilitate a marriage. 

The bill has sailed through Parliament with little opposition and will receive Royal Assent later this week.

The new legislation will not affect the validity of any marriages or civil partnerships that took place prior to the new law coming into force.

This change is not UK wide, in Northern Ireland and Scotland the minimum age for marriage remains at 16, in Northern Ireland you still need parental consent but in Scotland it is not required. 

Choosing the right solicitor for your matter is crucial and we therefore offer a free initial consultation so that you can find out more about our services and decide whether we are the right fit for you. 

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