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Published: Fri, 02 Feb 2018
Alternatives dispute resolution and family law
Sue and Alex are experiencing problem and the welfare officer should be advised that she must also consider other methods of alternatives dispute resolution such as mediation, which can particularly helpful in dealing with disputes with children, mediation may be considered but unlikely to be successful.
As unmarried parents, Alex has no automatic parental responsibility (PR) for his child but the mother of the non marital child has sole PR (s.2 (2)) Children Act 1989. Alex could acquire parental responsibility (PR) with Sue’s consent, if refused he could acquire through court for a parental responsibility order (PRO) for Freddie (s.4 (1) (a, CA 1989. PR (all the rights, duties, powers, authority, responsibilities and authority which by law a parent of a child has in relation to the child and his property (s.3, children act ( CA) 1989)) is a key concept of 1989 Act and the fact that this act makes it easier for unmarried father to acquire parental responsibility. However the parental involvement allowed him will ultimately be left to the discretion of the court, applying the welfare principle (s.1, CA 1989). On an application by the Alex for a PRO the welfare of the child is the paramount consideration (s.1, CA 1989). There is now judicial guidance: Re H (illegitimate children: parental rights) (NO.2) 1 FLR 214 per Balcombe LJ.Relavant factors would appear to include: how PRO is likely to benefit the child, the relationship the father has with the child, the reason for the application, his level of commitment to and involvement with the child, and whether making the order is likely to destabilise the child’s new family unit .But in Re H (Parental responsibility)  1 FLR 855,the court of Appeal held that the Balcombe list is neither exhaustive nor determinative and that the welfare principle is the over riding criterion.
The unmarried father, Alex may also apply as of right (M v C and Calderdale MBC  Fam law 571) for s.8 Children Act 1989 order. Any s.8 Children Act 1989 order will only affect PR in so far as it deals with a concrete issue concerning children up bringing, and neither parent must act in compatibility with such an order. However PRO is not must for s.8 CA 1989 order. In such like private family disputes, it is not automatic that this order can be made. The court will be influenced by non-intervention principle (s.1 (5) CA 1989.The principle reflect that responsibility for children rests with parents, state intervention is only justified when it is best for the child. There is a presumption (no order ‘unless …. better for the child than making no order at all and court will only make an order if satisfied that there is a demonstrable need and parents will have to justify an order being made, but where there is a dispute, as here an order is probably going to be desirable.
In deciding for the upbringing of a child, welfare of the child will be the courts paramount consideration (s. (1) (1)(CA1989) without any delay (S.2(2)(CA1989). If delay exists it may affect the upbringing of the child by not living/meeting natural father and mother. Child’s sense of time is more acute then that of an adult.
The checklist in s.1 (3) CA 1989 is applicable to assist the court with the balancing exercise necessary to assess the Freddie’s welfare.
The wishes and feelings of the child (s. 1 (3) (a)) CA 1989: It is of utmost importance to look at the age of Freddie to decide how much weight will be given to his wishes. In Re R (Residence: shared case: children views (2005), 7 and 9 years siblings were given right to participate in private law proceeding and have weight given to their views: they favoured spending five days with each of their separated parents, who now lived a short distance apart from one another one should not forget it is not a mathematical formula, each case taken on own merits so 7 year old will not automatically be followed here. Freddie who is so young, it is not generally of an age when any great weight will be placed upon his wishes for staying with his grandma. But in any case Court would not ask Freddie to choose because it is the decision of the court and not the child (Re P (A Minor) Education: child views (1992). Moreover to ascertain the child’s wishes the court will rely on the investigation made by a Children and family court advisory and support service (CAFCASS) officer. Clearly Freddie is so small that the court would not give due consideration to Freddie’s wishes and feelings. However the court would give due considerations to other factors on the checklist.
Physical, emotional and educational needs (s. 1 (3) (b)) CA 1989: The Freddie’s physical needs are being met by grandma to date by providing him accommodation, food and clothing. Mother could meet his needs? Yes but what about the emotional needs? De stability. However in considering Freddie’s emotional needs the court will place weight upon the closeness of the child’s ties with one or other of his parents. As Freddie has always been cared ever since born by her mother and Sue had a nervous breakdown during which Freddie went to stay with grandma. Now Sue seems to be in perfect condition because she is in full- time job. So it would not be too difficult for Sue to prove that child has stronger bond with his mother.
What about who will care for Freddie when Sue is on job? Freddie could be left in the morning with grandma by Sue while she is on its way to the job and in the evening again picked up by Sue while returning from the job. As regards to emotional needs whenever possible brother and sister should be brought up together (C v C (custody of children (1988). It appeared that as Alex got married with Carol and could have children in near future so Freddie’s emotional needs would be met by having some staying contact with his father.
(c) Effect of change in circumstances (s. 1 (3) (c)) CA 1989: In practice preservation of status quo important factor (s.1 (3) (c) but in present scenario natural father and mother are not having a regular contact with their child. However this would potentially damage the child’s welfare and upbringing by not allowing Freddie to have regular contact with natural parents. To prevent this it would be detrimental to bring change in circumstances. Will the change be of any positive benefits? There is a good reason for this as continuity of care and being looked after by grandma is not sufficient as the development of sense of security would only be possible by remaining present and in contact with natural parents.
(d) Age, sex, background etc (s. 1 (3) (d)) CA 1989: The general rule is that it is better for young children to be with mother (M v M (1982), but very young child can cope with either parent so court will not attach due weight to child’s wishes. Sex plays vital role Re H (A minor (1990) teenager best with parent of same sex but avoiding father would deprive the children from remaining alive about their cultural background. However paternal preference does not have status of legal presumption and weight attached to it is a matter of judicial discretion.
Harm (s.1 (3) (e)) CA 1989 – The court will consider s.1 (3) (e) caused to childrenby not seeing both parents Re S (Minors: Access (1990) – contact is the right of the child not of the parent…the child has a right to know his parent, if deprived – emotional harm and missing out on relp with father and mother so already a damaging sit.
(f) Capability of Parents (s. 1 (3) (f)) CA 1989. Presumption is that Freddie would be better looked after by natural parents rather than a grandma or child minder etc so in the absence when mother (Sue) is out on work –who will look after Freddie? Grandma may be. Each parent capable here but if Freddie stay at home with Alex the child have step mother also but what about when new baby arrives in near future with Carol then Alex love and time will be shared by two children. The love and care for Freddie would not remain the same as it would be now.
Orders available (s. 1 (3) (g)) CA 1989: Residence and contact orders
Residence order: – This order does not have any effect on the parental responsibility of either parent. It is indented to settle the child’s living arrangements and no more. A Residence order RO can be made in favour of more than one person.
The fact that Freddie is so young it will weigh in Sue’s favour. There is a general rule it is better for young children to be with their mother (M v M  4 FLR 603), but maternal preference does not have the status of a legal; presumption and the weight attached to it is a matter of judicial discretion. In the Scottish case of the Brixey v Lynas 2 FLR 499 the house of lords referred to working of nature….where a very young child has been with his mother since birth and there is no criticism of her ability to care for the child only the strongest competing advantage are likely to prevail.’ The more recent English case of Re A children: 1959 UN declaration  1FLR 354 suggests that the court will be more easily be persuaded that the child is better cared for by the mother than by the father, and the younger the child more so.
A further factor in Sue’s favour is Freddie have lived with her mother since by birth it is only after the breakdown of relationship between Alex and Sue Freddie has gone to live with grandma temporarily. In practice, preservation of the status quo tends to be the most important factor (s.1 (3) (C). Continuity care is important and the court will be reluctant to disturb the Freddie’ settled environment being with her natural mother, unless there is a good reason for doing so (Re B (Residence order: status Quo)  1 FLR 368).
On balance taking all relevant factors into account, it would seem likely that the court will decide that Freddie welfare demands that he stay with Sue, and make an unconditional residence order in Sue’s favour as it would be best for Freddie’s upbringing to stay with her.
A joint residence order (s.11 (4)) would appear unlikely and impracticable in the circumstances and it has been said that such orders would only be appropriate where there is a good relationship between the parents (Re (A Minor) Residence Order: Finance) 2 FLR 612).
Contact order: Alex would, however, undoubtedly be allowed regular and frequent contact with his son. In the present circumstances contact is to be actively encouraged as being in the interest of Freddie. In Re S (contact: promoting Relationship with Absent Parent) EWCA Civ 18 Fam Law 387, it was recognized that no parent was perfect, but ‘ good enough’ parents should have a relationship with their child, for their own benefit and, even more, in the interests of the child. It was therefore; more important that the attempt to promote contact between a child and the non resident parent should not be abandoned until it was clear that the child would not benefit from continuing the attempt. Under the provisions in the children and adoption Act 2006 a new s. 11 I is inserted into a CA 1989 and warning notice is being attached regarding the consequences of non compliance. Failure to comply with the contact order may result in enforcement order being applied for and the court talking steps to ensure that any contact order made in relation to the children actually ‘works’.
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