FAQs

A consistent breach of a Child Arrangements Order can be very upsetting and frustrating for the other parent and cause a lot of uncertainty for the child concerned. When one parent refuses to adhere to the terms of the Order, then the other parent may apply to the Court for enforcement of the existing Order.

Initial Steps

In first instance you should always speak with the other parent directly to carefully address all the issues. This may help break the ice between you and conclude matters without the need of engaging solicitors or the Court. If this approach fails, the next step would be to obtain legal advice and weigh up alternative options.

Your solicitor might propose to write to the other parent to gently remind them of their obligation to comply with the Order and the legal implications if they continue to breach it. All of the above would already be set out under the banner of a “Warning Notice” which is attached to every Child Arrangements Order. The Court tries to promote compliance in this way and lets the parties know of the consequences for failing to do so. If legal correspondence does not achieve the desired effect, then you may need to consider applying to the Court for enforcement.

Enforcement

The Court will determine the nature of the breach and look at the reasons behind the other party’s non-compliance and whether there is a justification behind their conduct. The Court will assess the effect of the breach on the child’s welfare and whether it would be in the child’s best interests for the order to be enforced.

When a Child Arrangements Order is already in place almost anything can amount to a breach including a lateness to the handover or a cancellation of contact due to an illness, a prior work commitment. Whilst a one off incident of this nature is unlikely to be enough for the Court to sanction the other party, a series of minor breaches may have a serious impact on the welfare of the child and should therefore be looked at more closely. It is advisable to keep a record of all the instances to ensure that the Court has a full picture of the impact of the frequency of the said breaches on the child and the other parent.

Enforcement and Sanctions

In deciding whether to enforce the Order, the Court must satisfy itself beyond reasonable doubt that such action is necessary and proportionate to the seriousness and frequency of the party committing the breach. The Court has a range of sanctions available to it. Whilst some parties may be referred to a separated parents information program or mediation to resolve their disputes, others could be ordered to pay a fine, undertake unpaid work or be committed to prison.

If you are considering applying to the Court for enforcement of the existing Child Arrangements Order, we would highly recommend that you seek specialist assistance.

Surrogacy has become more common in the last few years in the UK. It is a situation whereby a woman (the “surrogate”) carries a child for a couple (the “intended parents”). Usually this is because the intended parents cannot carry a child themselves. There are different types of surrogacy depending upon the way in which the embryo is made.

This is a legal arrangement in the UK. However, in order for it to be legal, certain rules must be followed by the people involved i.e. the surrogate and the child’s intended parents. For example, a surrogate must only be paid for their “reasonable expenses” and therefore they must not profit from the arrangement.

The specifics of the surrogacy arrangement are usually recorded within a surrogacy agreement. However, it is important that all parties involved understand that this type of agreement cannot be enforced. This is regardless of whether the surrogate has signed the document or whether the intended parents have paid the surrogate for her reasonable expenses.

Where there is no dispute once the child is born, the intended parents can apply to the Court for a Parental Order. A Parental Order effectively transfers the legal parentage from the surrogate and if applicable, her spouse or civil partner, to the intended parents. The surrogate will need to consent in order for the Parental Order to be made, although, a surrogate can only give her valid consent once 6 weeks following the birth of the child have passed. If the surrogate is married or in a civil partnership, her spouse/civil partner will also need to provide their consent.

The default legal position is that the mother who gave birth to the child is the legal mother of that child. This means that if there is a disagreement as to who should be the child’s legal parents, the surrogate will be considered the legal mother. If the surrogate is married or in a civil partnership, her husband or civil partner will automatically be named the legal father of the child.

In such circumstances, the intended parents may be left with no alternative but to apply to the Court for a Child Arrangements Order. If an application to the Court has to be made, the Court’s paramount consideration will be the child’s welfare. They will also consider what is in the child’s best interests, by virtue of the welfare checklist.

Whilst it is possible for there to be a dispute due to the fact that surrogacy agreements cannot be enforced, in practice, the majority of surrogacy arrangements are reasonably straightforward.

The Law Commission have suggested that the current law on surrogacy requires reform. It is expected that there will be some proposed changes to the law in the near future which will provide intended parents with a new way to becoming the legal parents of their child from birth.

If you would like some further legal advice in relation to this issue, or any other family law matter, please contact our specialist children team who would be happy to assist.

In Children Act Proceedings, each party is usually responsible for their own legal fees.

At McAlister Family Law, we understand that such cases can be overwhelming and difficult to navigate and we will therefore offer you an initial meeting to discuss your case in full and advise you on your options.

Following your initial meeting you will have made a choice as to the funding option that is right for your case. Part of our moving forward plan is to keep a check on costs and ensure that we are all on the same page as to the costs incurred to date. If you are on a full representation package, then we will keep a close eye on the estimate that we have provided.

Disputes in relation to child law can be expensive and if you are on a tight budget or are looking for certainty in relation to how much your case will cost, then you may wish to take advantage of our children disputes fixed fee packages. For example, we offer a Children dispute fixed fee package and also a Parental Responsibility fixed fee package.

Our fixed fee does not cover cases which proceed beyond the first court hearing. If the case does progress beyond this then we will either charge an hourly rate or will discuss an alternative fixed fee arrangement. You may also be interested in using our pay as you go service.

There is a court fee of £232 to issue your C100 form for your Children Act application. There will also be additional mediation costs, a service the court encourages you to engage in before making your application. During the proceedings, depending on the complexity of your case there might be fees to instruct an expert, such as: drug/alcohol testing, psychological assessment or an Independent Social Worker. These will all carry fees and the starting point is that expert fees are divided equally between the parties.

We will keep you regularly updated with regards your costs in your case and so that you can budget for the proceedings. Normally Children Act Proceedings consist of three hearing: a First Hearing Dispute Resolution Appoint (FHDR), a Dispute Resolution Appointment (DRA) and a Final Hearing. However, if your case is complex and Finding of Fact hearing is needed or more evidence/reports are needed then you might have more hearings that the above list and this may involve more work and higher costs.

Child maintenance is a form of child support for the parent that lives with and has the day to day care of the child (‘receiving parent’), paid for by the other parent (‘paying parent’). It is intended to be a contribution towards your child’s living costs. It is an important form of support which tries to ensure that both parents are responsible for the child’s living costs, even if they do not see them regularly or at all.

There is a government service called the Child Maintenance Service (CMS) which helps parents work out, collect and pay out child maintenance. It is very useful in circumstances whereby separated parents cannot agree a sum for child maintenance between themselves. It can however also be used simply to calculate the sum of child maintenance that should be paid.

Child maintenance is usually calculated by the CMS by using the following steps:-

1. Income

The first step is to look at what the paying parent’s gross income is and whether they receive any benefits such as universal credits.

2. Things that affect income

The next step is to look at whether there are certain things that may affect the paying parent’s income, such as other children that the paying parent has to support or pension payments. This may be taken into consideration by the CMS.

3. Child maintenance rates

The CMS will then apply one of four different rates of child maintenance. These depend upon the paying parents gross weekly income.

The rates are as follows:

If the paying parent’s gross weekly income is higher than £3,000, the receiving parent can apply to the Court to make a child maintenance top-up order.

4. Other children

They will then look at how many children the paying parent has to pay child maintenance payments for and how many children live with them.

5. Weekly amount of child maintenance

The weekly child maintenance sum is then calculated on the basis of all of the information above.

6. Shared care

If the child spends time overnight with the paying parent, the child maintenance calculation will be deducted appropriately to reflect the average number of shared care nights a week.

Although child maintenance is calculated as a weekly figure, it can be paid monthly, fortnightly or weekly.

The CMS website has a useful calculator which can be used as a general guide to estimate what you are entitled to or how much you should be paying to the other parent.

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

If an agreement cannot be reached, a CMS application can be made, in which the CMS will make a formal calculation as to how much child maintenance should be paid.

If you have any questions about this issue, or any other family law matter, please contact our specialist children team who would be happy to assist.

The concept of shared care derives from the Child Arrangements Order which was introduced to bring the legislation in line with the changing attitudes towards parenting post separation.

A Child Arrangements Order sets out with whom and when a child is to live and spend time or otherwise have contact. The old terms of “residence” and “contact” orders were replaced with a “live with order” and “spend time with order” with a view to reducing perception that a parent with a “residence order” was in a superior position to the parent who only had contact with the child.

In practice, a shared care order provides that the child shall “live with” either parent. The division of time however depends on individual circumstances of every family and it does not necessarily mean an exact 50/50 split. It is therefore possible for a Child Arrangements Order to state that the child shall live with both parents and the same time allow for more time with one parent than the other.

Shared care is predominantly concerned with the quality of time as opposed to an equal allocation of time. 50/50 arrangements are very rare as it is difficult to reconcile them in practice for example due to work commitments. Shared care may therefore come in different formats to many parents.

Formats of shared care

One way to arrange an equal division of time is on a week on/week off basis. Such arrangements tend to work best with older children who are more independent and have a better understanding of concept of time. In younger children prolonged periods of separation from one parent may cause upset and distress and this therefore should be approached with care.

The alternative arrangement may provide for split weekdays and weekends between the parents and this typically works amongst separated families who live nearby, follow a similar routine and have an easy access to the school. The frequency of handovers however may come with its own challenges as it tends to break up the child’s routine and lead to a confusion. Furthermore, in cases when parents are not on good terms, the exposure to parental conflict becomes more of a risk to the child’s welfare.

The arrangements most favoured by the Court tend to follow a pattern of alternative weekends from Friday after school until either Sunday evening or Monday morning with some form of additional mid-week contact to bridge the gap inbetween the alternate weekends. Although the division of time is unequal it enables both parents to have a quality time with the child over the entire weekend and the other parent to maintain continuity of care.

Considerations for the court

The arrangements for shared care and the division of time depend on what the Court considers appropriate having regard to the welfare checklist as well as practical aspects like the nature of sleeping arrangements, suitability of accommodation, geographical location of each parent and the distance from the school and the wider family network. Recent case law also suggests that it is no longer a requirement for parents to be on good terms to make shared care a workable arrangement. If this is considered to be in a child’s best interests, then the relationship between the parents should not affect the making of a shared live with order.

Increasingly, Grandparents play greater roles in care of their Grandchildren as hard- pressed parents juggle busy home and work lives which is why understand Grandparents’ rights is more important than ever. Providing unpaid childcare and helping with the school run being just two of the many tasks a Grandparent might undertake.

When a relationship breaks down, the impact on a Grandparent can be much greater than might have been the case, through no fault of their own and a child’s emotional wellbeing can be at risk when losing such close relationships.

Sadly, Grandparents do not have an automatic right to apply to the court to see a grandchild like a parent does in applying to see and spend time with their own child. So, when there are barriers put up in terms of you seeing them, you may wonder where to turn.

It is important to get advice at an early stage to ensure the relationships and existing arrangements are maintained. If a parent is obstructing your relationship with a Grandchild, you may be able to get an order to maintain your contact.

The starting point is to see if the parent(s) will agree to the contact you seek. This might involve a Solicitors letter being sent or a referral to Mediation to see if the issues can be resolved.

It is important to note however that Grandparents do not have automatic legal rights to see their grandchildren like parents do. As such if matters cannot be resolved through correspondence of mediation, a grandparent can apply to the court for permission to apply for a Child Arrangements Order to determine the time you spend with your grandchild(ren).

Whilst you may have to apply for permission (or leave) as a Grandparents to make an application to the court, the , the Family Court would rarely refuse permission providing there is no good welfare reason why it should not, providing you can show a close and enduring relationship exists. Also, as a family member, permission is not required if a child has lived with a Grandparent for a period of 1 year prior to the application being made.

The court could make a Child Arrangement Order for a Grandchild to spend time with a Grandparent, in the same way as it could for a parent. McAlister Family Law has helped Grandparents to obtain Child Arrangement Orders which have included overnight contact on a regular basis. Each family is different though and as such no two cases are the same. Just because you may have heard that one Grandparent has obtained a certain order, it does not necessarily follow that you will

There are however steps to consider before making an application to the court such as negotiations through solicitors or attending Mediation to see if a Mediator can help you to resolve matters outside of court. Maintaining good relationships with the other parent goes a long way in avoiding difficulties further down the line.

The McAlister Family Law Children team helps Grandparents to understand their Grandparents’ rights and maintain contact with their grandchildren following divorce, separation or other family estrangement.

The word “custody” is quite an old-fashioned way of looking at what living arrangements work best for your child or children. Whereas legal dramas popularised the idea of “getting custody” of the kids, what happens in reality is somewhat different.

When couples separate, the issue of where the children live is often a thorny issue. Sometimes couples can resolve this between themselves or via mediation/other alternative dispute resolution. But when couples can’t agree, court proceedings are often the last resort.

If you seek for a court to decide that the children live with you, then you can make an application to court for a Child Arrangements Order. The application is asking the court to make a decision – an “order” – on who the children live with and spend time with.

The old notion of custody is now replaced with the idea that children either “live with” a parent or they “spend time with” a parent. Where the children predominantly live with one parent rather than the other, this routine is often called a “live with, spend time with” order; the child lives with one parent and spends time with the other. Alternatively, it may be decided that the children live with both parents where it is clear and evident that the children have two separate homes – this is a “live with, live with” order.

But how do we get to a situation where the court makes this order? The court will list the matter for an initial hearing (First Hearing Dispute Resolution Appointment, or FHDRA) where the court explores what further information it may need. At this hearing, the court will have a letter from Cafcass, who will confirm whether safeguarding checks – checking the police databases – have been completed against the parties and what they consider to be an appropriate next step.

The court will consider what further information it needs to make a decision, then list the matter for either a Final Hearing, or for Direction Resolution Appointment (DRA) if it thinks it will need to consider any further information before making a final decision. Further information can include, for example, GP reports, alcohol/drug testing, psychological assessments or further reports from Cafcass.

The court will almost certainly want to see and hear witness evidence from both parents. They will see the evidence through a witness statement, and hear the evidence through both parents speaking at a final hearing. The court will then make a decision.

In making its decision, the court will give consideration to the Welfare Checklist contained within Section 1(3) of the Children Act 1989. Ultimately, the court will make a decision based on what they believe, having reviewed all the evidence, is in the best interests of the child. It is less about either parent “getting custody” than it is about the court looking at what is in the best interests of the child.

The final order of the court will specify whether the child lives with each parent or whether the child spends time with each parent. In exceptional cases, the court will order that the child neither lives with nor spends time with one of their parents.

When we are talking about “Rights”, we are talking about a variety of topics, including rights to make decisions and rights to contact, often thought of as “custody”.

When considering the rights of parents, the old-world, outdated view was that the Mother would have the role of “primary carer” and that the Father was very much secondary.

This view is now very much replaced with a more 21st century viewpoint. The 21st century recognises that there are many ways in which a family may divide the childcare responsibilities or how they look after the children day to day, and that the concept of the weekend dad, who just turns up after mum has done all the hard work during the week, is increasingly an anachronism. Indeed, the outdated model works on an assumption of a heterosexual relationship – the old-world view did not even consider what to do if a child had two mothers or two fathers.

There is nothing in law to say that a Mother or Father has more or less rights with regards to their child upon separation, or indeed before separation.

Those individuals with parental responsibility have the right to make decisions about their child. The means by which a parent acquires such responsibility is dealt with in other questions, but to summarise generally Mother’s automatically have Parental Responsibility and Father’s acquire it through either being named on the Birth Certificate or being married to the Mother at the time of birth. This includes decisions regarding education, medical issues and foreign holidays, by way of example. 

If a situation arises where only one of the two parents has parental responsibility, then their rights are different at law. Parental responsibility gives a parent more rights regarding a child than a parent without such responsibility, so if you are an unmarried father not on the birth certificate, then you do have fewer rights. You can apply for an order granting parental responsibility, which is covered elsewhere in these questions, but you will need the court’s permission to do so (which should not be a huge hurdle to overcome).

What parents must remember is that the court is less interested in the “equal rights” of a parent and more in what are in the child’s best interests, and actually it can often be more about the rights of the child to having a meaningful relationship with both parents. Flipping the question of whether either parent has a right to see the child around to ask whether the child should have the right to having that meaningful relationship with both parents can be an instructive tool to aid parents when looking at their arrangements post-separation.

If you and your child’s other parent cannot agree on the child arrangements following separation, you might need to apply to the court for a Child Arrangements Order. Such an order can decide:

1. Where your child shall live
2. The time your child spends with each parents
3. The format of contact (face to face, phone calls, letters and card etc)

The first part of the order is the preamble and contains recitals and the second is the formal court order.

A recital records matters of fact that are helpful for the court to have on the face of the order, or agreements that cannot properly be framed as an undertaking or court order.

The order must be complied with. If it is not, you will see the warning notices on the body of the order and the consequences, i.e., you may be made to do unpaid work of pay financial compensation. You may also be held to be in contempt of court and imprisoned or fined, or your assets may be seized.

With that in mind, if you feel that the order is not working, given that you must comply with it, you should not act unilaterally and not comply with it; first you must consult the other party and see if they would consent to making changes. It is not unusual for there to be a provision in the final order for “any other contact that can be agreed”, which means that if you want to make changes between yourselves, by consent, then you can do so without the need to return the matter back to court. If this occurs, it is advisable to write down and agree on the changes you seek to make should this be questioned later on if court proceedings are issued.

Alternatively if the court is going well and you are thinking about applying to vary the order so you have more time with your child, the first step in to consult the other party. If they do not agree, the court would expect the parties to engage in mediation (if appropriate in your case) and see if the matter can be resolved before making an application to the court.

However, there might be situations that prevent you from seeking the agreement from the other parents such as a safeguarding issue that arises meaning you no longer feel the order is in your child’s best interest.

A party can also apply to the court vary the order on a C100 application form, but careful consideration would need to be given to this and you would be advised to obtain legal advice in the first instance. A court would not normally expect a party to return the matter back to court less than 12 months after a final order has been made.

However, if you are finding that an interim order is not working and you need the court to take steps to vary it, you can make an application to vary the order at any stage of the proceedings.

In all applications concerning children, the welfare of a child is the court’s paramount consideration and you must be able to demonstrate to the court why the change that you seek is in the child’s best interest. The court will also need to consider if the proposed change will affect the child and this is a factor you need to bear in mind before making your application.

If you are thinking about moving away with the children to somewhere else within the UK, you will need to consider how the children will be impacted by that move and how they will be able to maintain a relationship with the other parent. Your ex cannot stop you from moving away as long as the children will not be negatively impacted by the move and you are still able to facilitate arrangements for them to see the other parent, if an arrangement for this exists between you.

Moving within the UK

If you want to move to an area local to the other parent and it is not going to impact the existing arrangements for the children to spend time with them, your ex cannot stop you from doing this. It is not for your ex partner to decide whether or not you can move if it has no bearing on the children’s ability to spend time with your ex.

If you are looking to move further away and you know this is likely to have a significant impact on the children’s ability to see the other parent, you should have a plan in place for how their relationship with the children can be maintained and discuss this with the other parent first. This is particularly important as it may be that your move impacts which school the children attend and any decisions made regarding their education should be agreed jointly between you.

If you have thought everything through and believe what you are doing is in the best interests of the children, your ex still cannot stop you from moving. However, they are still able to apply to Court for a Prohibited Steps Order to prevent you from going if the disagree with your decision.

Moving outside the UK

If your ex has parental responsibility for the children, you will need their consent in order to move abroad with the children. This is a big decision to make and as with all big decisions involving children, these need to be jointly agreed with the other parent. You will need to consider the impact that moving abroad will have on the children and how it will affect any arrangements in place for them to spend time with the other parent. As with moving within the UK, if the other parent does not agree with your decision they can apply to court for a Prohibited Steps Order to stop you from moving, or alternatively, a Specific Issue Order for the children’s immediate return if you have already left. Equally, you could make an application for a Specific Issue Order allowing you to leave move abroad with the children which, if successful, means the other parent cannot stop you from going.

The best interests of the children will be the Court’s paramount consideration when determining whether you should be prevented from moving abroad/if the children should be immediately returned to the UK, which is why it is vital to fully consider all the factors that may affect the children before you make any decisions as you will need to be able to justify your decision.

Following the breakdown of a relationship, it can be difficult to sort out arrangements regarding children, including which parent they live with, and any time spent with the non-resident parent. This can often lead to arguments between parents, which can appear difficult to resolve. What causes more conflict is when one parent refuses to let the other parent see their child. This can be extremely distressing for a parent but also for children who may have been used to seeing their mother or father every day.

The Court will not permit a parent to stop contact unless there are significant concerns for a child’s safety and wellbeing. The Court is keen to promote a positive and healthy relationship with both parents where possible and so, no parent can stop the other from seeing their child unless a court decides that there would be a risk of harm to them.

If an agreement isn’t possible there are remedies in place to assist parents in dealing with this issue. CAFCASS may be able to assist in ensuring contact remains in place for the non-residing parent. They can help a Parenting Plan, allowing both you and your ex-partner to agree times for contact. This plan might involve overnight stays, or meeting for a certain time each week. If you are left with no choice but to go to court, you will usually be expected to have tried a Parenting Plan first.

A Parenting Plan can also help more generally with matters relating to your child’s education and healthcare. Under the Children Act 1989, if you have parental responsibility, then you have the right to a say in these matters. A child’s mother automatically has parental responsibility, and a father usually will. However, parental responsibility does not automatically mean that you have a right to see your child.

If your ex-partner is not willing to cooperate via this route, another option is to instruct a solicitor to write a letter setting out your contact proposals, and negotiate with your ex. This will make it clear that you are treating the matter seriously and are prepared to pursue all avenues.

Alternatively, a family mediator may be able to help you in reaching an agreement with your ex. A mediator is a trained neutral 3rd party individual who helps parties reach an agreement by talking with both parents. A mediation agreement has no legal force, but a solicitor can help you apply to court to make it legally binding.

If other methods are unsuccessful, you can apply to court for an interim contact order which allows you to have contact with your children until a Child Arrangements Order is made. A child arrangements order will set out how often you can see your child, and where.

The welfare of your child will be the court’s main concern as they view a child’s contact with their biological parents very important and will usually only refuse access if they believe there is a possible risk of harm to the child.

There are a number of reasons why you might seek an emergency order and you will be required to explain your reasons for the urgency when making your application to Court. The Court will generally only hear your case urgently if they consider that any delay in hearing the application would risk causing the children significant harm, whether that be physically, emotionally or psychologically. 

Without Notice applications

It may be that you need an emergency order to ensure the safety of you and the children but you are worried that if the abuser finds out you have applied for that order, it would place you and the children in a very vulnerable position and even greater risk of danger. If this is the case, we can ask the Court to hold an emergency hearing without notice to the abuser. The judge will hear your case and can make an order protecting you and the children without the abuser attending or even knowing about your application. The abuser will be served a copy of the order once you and the children are safe. 

Prohibited Steps Order and Specific Issue Order

A Prohibited Steps Order prevents a person from taking a particular step in relation to a child and a Specific Issue Order allows you to take certain action in relation to an issue. You may need to apply for an emergency Prohibited Steps Order if, for example, you are concerned that your children are at risk of being abducted by the other parent and/or you want to stop them from fleeing the country with the children. At the same time, you should also notify the passport office and the police so they are aware and can provide assistance if necessary. 

If the children live with you and the other parent wrongfully retains the children after spending time with them, you can ask the Court for an emergency Specific Issue Order that directs the other parent to immediately return the children to your care. 

What will the Court consider?

In all applications regarding children, the children’s best interests are the Court’s paramount consideration. The Court will consider the following factors when deciding whether the emergency order applied for is in the best interests of the children:-

• The children’s wishes and feelings (having regard to their age and understanding)
• The children’s needs
• The effect any change of circumstances would have on them
• The age, sex and background of the children
• Any harm the children may suffer or be at risk of suffering
• How each parent can meet the children’s needs

You can change your child’s surname provided that you have obtained consent from everyone who holds parental responsibility (PR) for your child. PR is a legal concept which refers to all the rights, responsibilities, and powers that a parent has towards a child. It imposes obligations such as providing a home for the child but also gives them the right to make important decisions about their upbringing including a change of surname. PR is automatically granted to biological mothers. The other parent will only acquire PR if they are named on the child’s birth certificate or is married to the mother at the time of the child’s birth. Other parties like family members or the Local Authority may also be granted PR using either a parental responsibility agreement or a Court Order.

Change of surname by agreement 

If you have permission from everyone with PR to change the child’s surname, the process can be completed via a deed poll. The deed pool would need to be lodged together with other supporting documentation at the Royal Courts of Justice where it will become a public record. It is important to obtain a prior consent of a a child aged 16 or 17 to the change of their name.

Application to the Court 

Most legal disputes about the child’s surname typically arise from a relationship breakdown. It is a common occurrence for one parent to wish to revert back to their maiden name after a divorce. The added complication is when the parties subsequently remarry and again change their surnames. In the absence of an agreement between, it may be necessary to make an application to the Court for a Specific Issue Order.

The legal test for applications concerned with a change of a child’s surname is laid out in the landmark case of Dawson v Wearmouth UKHL 18. The Court’s primary consideration will always be whether the change of surname is in the child’s best interests. In determining this issue, the Court will also have regard to the rationale behind the proposed change of surname to ensure that it is not designed to reduce significance of the other parent in the child’s life.

A surname is an integral part of every child’s life which forms part of their identify and helps connect them to their cultural and religious heritage. The following factors will therefore play a pivotal role in the Court’s mind when dealing with applications of such nature:

• The effect on the child should a change be allowed;
• How long the child has been known by their existing surname;
• The effect on the child should the change be refused;
• The reasons for the change of surname;
• The age and wishes and feelings of the child in the context of which surname does the child want to be known by.

The law does not support applications made for a convenience’s sake or out of sense of “ownership” about the child. Before embarking on a legal battle it may therefore be worth proposing that the child’s surname is double-barrelled as a way of compromise.

When you make a decision to a adopt a child, whether you’re an individual or a couple, it should be a happy and joyous experience but is also ban be a frustrating, challenging and can be a long-winded process. There are several ways in which you can adopt a child but most commonly are ‘agency’ or ‘non-agency’ adoptions. Non-agency adoptions are generally stepparent adoptions. Agency adoptions are through a Local Authority. You can also be inter-country adoption which is governed by other criteria.

As can be seen already there are several ways in which you can adopt a child and become their legal parent. By becoming a child’s legal parent through any adoption, it will give you parental responsibility for that child and it will extinguish any persons existing parental responsibility and so it is a serious lifelong commitment that you are giving to a child.

Agency adoptions are probably what most people will commonly conceive adoption to be.

To adopt a child there are certain preliminaries that must be established such as, you must be 21 years of age, you need to be domiciled or habitually resident in the UK and the child you wish to adopt must be under the age of 18 years.

You will be assessed thoroughly by a Social Worker, whether you are adopting as a single person or as a couple. This can feel intrusive and unnecessary when you may not understand the process and what is required. It can be overwhelming but with the correct legal advice and support, it can ease the process so that you are aware of what is expected.

Once the assessment is complete, and it a positive assessment, this will then be presented to a panel, who will review your assessment and hopefully recommend that you are a suitable person(s) to adopt a child.

You will then be ‘matched’ with a child. This will be an exciting time for your family, but there will naturally be apprehension in what and how this is going to impact on your life. There will be series of ‘introductions’ when it becomes very real. You will be supported throughout the whole process and eventually the child will move in and complete your family.

However, that is not the end of your journey as the adoption now needs to become legal. Before your application to adopt the child can be made to the Court that child must have been living with you for at least 10 weeks. The birth parents can either agree or challenge your application to adopt their child. It is only at a final hearing of your application that the Court will make the decision as to whether an adoption order can be made. There will also be a formal Court hearing when you can attend court with the child, and other family members if you so wish when you will receive a certificate – this is generally a celebration for your family, without the birth parents being present or told of the hearing.

You can remain unknown to the child’s birth family, but you can also be involved in post adoption contact with the birth parents which can assist of yearly updates, photos all of which can be managed by you or through the Adoption Agency.