As suggested elsewhere in this guide, it is often helpful for cohabitees to consider counselling as their first step if their relationship is in difficulties or if it appears to be about to break down.

Because the financial and property issues arising on the breakdown of a cohabitation relationship can be complicated, and if counselling has not enabled the parties to rescue their relationship, then it makes sense for the parties – if they cannot agree matters sensibly between themselves – to take separate legal advice and guidance on their rights and liabilities.

4.3 Children

Often when parents separate, their biggest worries relate to their children: their children’s future and well-being, and the parents future relationship with the children.

In this section we will try to answer some of the questions most frequently asked by unmarried parents and step parents. [There is a later heading for grandparents and other relatives at Section 8 of this Guide].

4.3.1 What Parental Rights and Duties do I and my partner have towards my child?

Parental rights and duties are recognised in law and together are called “Parental Responsibility”. This term includes “all the rights, powers, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

In practical terms, Parental Responsibility grants to you the legal right to:-

(i) be informed about your child (for example by the school, social services, doctors, dentist),and
(ii) to access information concerning your child (from school, social services, doctors, dentist),and
(iii) to make or participate in making decisions for your child

If when your child was born its parents were not married to each other, then in cases where the child was born on or after 2nd December 2003, both parents will have Parental Responsibility for the child if the fathers name is registered on the birth certificate. If the child was born before 2nd December 2003, only the mother will have Parental Responsibilities unless:-

You may also have Parental Responsibility for a child:

a) if you are a step parent and you have a Residence Order in your favor,

b) the child has been adopted by you.

Once granted, Parental Responsibility will last until the child reaches adulthood. So, even though you are separated or divorced after the child is born you should continue to share Parental Responsibility of your child.

4.3.2 Where will my children live?

It may be that, when you reach the decision to separate, you are also able to make arrangements for the care of your children which prove to be acceptable to both of you, in which case these can continue on an informal basis, being re-arranged by fresh agreement as and when it suits you (and the children) to do so.

It may be that you are generally able to discuss arrangements with your partner, but that there are some points which you have not been able to agree, and that these points may be stopping you from achieving a workable agreement. To break such a deadlock, one answer may be to arrange a meeting with a local Mediator: you can obtain details of local mediation services from either your Solicitor, the local Court or your local CAB.

If your disagreement is more fundamental, and you simply cannot achieve an agreement then you can apply to the Court for a decision to be imposed. Please look at Section 3.4.6 of this Guide for an outline of the Court procedure involved if you apply for a Court Order.

4.3.3 Types of Order that you can ask the Court to make:

Parental Responsibility Order – only fathers can apply to the Court for a Parental Responsibility Order, and only if they do not have Parental Responsibility already.

Please note that unmarried fathers will need to ask the Court to make a separate Parental Responsibility Order at the same time as seeking the Residence Order if they wish Parental Responsibility to continue even if the Residence Order comes to an end.

When considering an application for a Parental Responsibility order the Court will consider: (a) the bond between the father and the child; (b) the attachment between the father and the child; and (c) the father’s reasons for making the application

Residence Order – this replaces the old “custody”order. It simply states with whom a child should live. It gives Parental Responsibility to the holder of the order, for the life time of the order only.

Contact Order – this replaces the old “access” order. A contact order can state who a child is to see, how often, when, where, and whether, for example, that contact should be supervised.

Prohibited Steps Order – such an order can require a person with Parental Responsibility to refrain from taking a particular action or step with regard to the child without the Court’s consent e.g.changing a child’s name or taking a child outside England and Wales for a period of in excess of 28days.

Specific Issue Order – here the Court makes an order concerning a specific question that has arisen in relation to a child e.g. deciding which school a child should attend.

These Court proceedings are intended to be “non-adversarial”, that is to say the, Court will endeavour at all stages to assist you to achieve an agreement, thereby avoiding a hearing. In only very exceptional cases will a child be invited to attend a Court hearing. Sometimes, the Court may ask either the CAFCASS Officer or Social Services to look into the case and to prepare a report. In the report the child’s views and the views of the parents, and of any other interested person will be relayed to the Court, and this will assist the Court in coming to a decision when the parents cannot agree.

The Welfare Checklist

When deciding the case the Court will apply the “Welfare Checklist”, which is a list of the criteria the Court must consider when coming to a decision.

It includes:

a) the wishes and feeling of the child, concerned in light of the child's age and understanding
b) the child's physical, emotional and educational needs
c) the likely effect on the child of any change in their circumstances
d) the child's age, sex, background, and any characteristics the Court considers relevant
e) any harm the child has suffered or is at risk of suffering
f) how capable each of the child's parents, (and any other relevant person in relation to whom the Court considers the question to be relevant), is of meeting the child's needs
g) the range of powers available to the Court

The No Order Principle

Simply because you apply to the Court for an order it does not mean that an order will necessarily be made. In fact the law presumes that generally no order should be made in relation to the children unless the Court considers in the particular case that making an order would be better for the children than making no order at all.

4.3.4 Seeing the other parent

There are no hard and fast rules as to how often, where or when contact should take place between the children and the parent who is not residing with them. It is presumed that all children have the right to know both of their parents and contact will therefore be ordered, unless contact is not in the best interest of the child’s welfare. The Court will need strong and cogent reasons before ruling that contact is not in a child’s best interests. If you have any doubts you should consult a Solicitor.

4.3.5 Can I apply to the Court for Child Maintenance or must I use the Child Support Agency?

The Court generally speaking no longer has the right to hear cases for child maintenance. There are exceptions. You should contact the Child Support Help Line for further information or your local DSS. You can in many, but not all, cases agree child maintenance payments without referring to the CSA or the Court. You cannot enforce either through the Court or through the CSA an agreement for child maintenance; therefore, if you believe that your (former) partner may be an unreliable payer you should give serious consideration to applying to the CSA or indeed to the Court for a consent order if the payer will agree to such an Order being made.