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Experiencing a divorce can be an especially bitter and difficult experience which can at times become distressing where there is a Child Arrangement Order in place as one parent will need to accept the decision that their child/children will not be able live at their place of residence. It is, of course, possible for parents to reach an agreement about their child’s care arrangements outside of the court in which case, both parents will be expected to comply with the mutually agreed child care arrangements. If you are going through a divorce or separation, it is extremely important that you address the child arrangement issues at the right time. Speaking to an experiences family lawyer at the right time can be very useful.

Section 8 of the Children Act 1989 states that a child arrangement order determines “with whom a child is to live, spend time or otherwise have contact, and when a child is to live, spend time or otherwise have contact with any person”. The parent with whom the child does not reside is referred to as the non-resident parent and as such, a non-resident parent will only be able to see their child in accordance with the child arrangement order in place. Often enough, it will be the mother who gets the residence of the child, leaving the father with only a periodical contact. Unfortunately, many fathers feel that there is little they can do to challenge that status quo. This is why it is important that there is awareness of the father’s rights.

It is important to note that a non-resident parent will continue to hold parental responsibility regardless of whether their child lives with them or not. Parental responsibility is defined under section 3 of the Children Act 1989 as “all rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. This means their opinions and wishes should be taken into account in respect of the child’s upbringing, no less than that of a resident parent. More importantly, an application for a Child Arrangement Order can only be made if the parent hold parental responsibility.

Contact us you if require assistance in determining whether you have parental responsibility, or if you require further guidance on applying for a Child Arrangement Order.

Additionally, the non-resident parent could be required to pay child maintenance if eligible. Maintenance arrangements can be made privately between both parents following a divorce by way of a family based arrangement form. This means that both parents will need to reach an agreement on what the cost of raising their child/children will be and as such, the amount and frequency of maintenance payments. In cases where there is difficulty in reaching an agreement, some choose to utilise the government schemes, also known as statutory schemes; this is now referred to as the Child Maintenance Service and this service will assess the non-resident parent’s income as well as the anticipated expenses of the child in order to determine the amount of child maintenance payable.

As previously mentioned, a non-resident parent will continue to hold parental responsibility which affords the non-resident parent with many rights including, having a say in matters such as the school their child should attend, having the right to be consulted in relation to any medical issues that their child may have, and also whether their child is permitted to go overseas with the resident parent.

If there is a Child Arrangement Order in place, then the parent with whom the child resides (resident parent) can take their child abroad for up to 28 days without obtaining consent from the non-resident parent.

If there is no Child Arrangement Order in place, the general rule is that a parent who wishes to take their child abroad must first obtain the written consent of those who hold parental responsibility especially, consent from the non-resident parent.

A non-resident parent has the right to seek legal remedies in cases where a resident parent takes their child abroad without the non-resident parent’s consent or consent from the Family Court and in cases where their child is not returned within the agreed time, as this is considered to be child abduction.

Further to the above, in cases where a non-resident parent feels that their rights are being ignored by the resident parent then the non-resident parent does have the right to make an application to the court for Specific Issue Order. A Specific Issue Order is an order requesting the Family Court to look at a specific question in relation to their child’s upbringing. The non-resident also has the right to apply to the Family Court for a Prohibited Steps Order which can prevent a parent from undertaking a certain action or making decisions about their child.

The important point to note as a non-resident parent is that it is vital to have parental responsibility as it is this responsibility that will provide a parent with their rights over their child/children regardless of whether they are the non-resident parent or not. If a parent is currently in process separating with their spouse and there are child care arrangements to be made, it important to determine whether the biological father of the child holds parental responsibility as mothers obtain parental responsibility automatically. In circumstances, where a child is born before 1 December 2003, a father would have only acquired parental responsibility if he was married to the mother of his child at the time of the child’s birth.

In cases where a child is born after 1 December 2003, a father will only have parental responsibility if he is named on the birth certificate. A father will not have parental responsibility if the child was born before 1 December 2003 in which case, an application can be made to the court for a Parental Responsibility Order.

In essence, a parent who later becomes the non-resident parent does not lose any rights over their child except the right for the child to reside with them every day.  If you are in the process of discussing child care arrangements and require further guidance on potentially becoming a non-resident parent and determining whether the necessary parental responsibility has been acquired, then please contact us and our dedicated team of family law specialists can assist you further.

Please call us on 020 3372 5125 or get an online consultation




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