Index to this page:

Children Act 1989

Parental Responsibility & Parental Responsibility agreements

Testamentary Guardians for children

Child maintenance and the Child Support Agency


Children Act 1989

This is the Act that sets out most of the law relating to children and parents both in private cases, and “public” - i.e. care type - cases.


If you are a parent, step-parent, grandparent or someone who lives with a child that is not your own, you may be able to ask the Court for help if you are concerned about a child's welfare. The Court's overriding concern is the welfare of the child or children and is obliged to consider what is in each child's best interests. The interests of any adults are only of concern to the Court when they have an effect on the best interests of the child or children. Even if you are not in the above categories, anyone concerned about a child's welfare can ask the Court for leave to make a full application.


The main “non-care type” orders sought through the courts are Contact (formerly access) and Residence (formerly custody), which are self-explanatory. It is also possible to ask the Court to decide on a “Specific Issue” – e.g. education or medical decisions, or changing a child's surname – or to ask the Court to forbid something – a “Prohibited Steps Order”– e.g. where someone has threatened to take a child abroad.


If a parent is unhappy about the way in which his or her child is being cared for, or feels that the child ought to be seeing more of the non-resident parent, then he or she can apply to the Court using a simple application form. The fee charged by the Court is presently £90.00 per application, but this can be reduced or waived by the Court for those the Court considers unable to pay or pay in full.


Once the application is filed with the Court, a date will be given for a short initial hearing where the Court will see if the parties can agree on the way in which to go forward. If this is not possible, then the Court will give “directions” on the way in which the case will be conducted from then on. Often this will include the commissioning of a “ Cafcass Report”. “Cafcass” (Children and Family Court Advisory and Support Service – formerly Court Welfare) is a service attached to the Courts and therefore independent of the parties. A Cafcass Officer (Family Reporter or Reporting Officer) will meet with both parties and speak to the child or children concerned so as to gain information and carry out an assessment of the case. The Cafcass Officer has been described as the “eyes and ears of the Court” and his or her view is very important when the Court comes to consider the case again.


After the Cafcass Officer has provided a written report, there is usually another short hearing for the Court and the parties to consider the recommendations and again try to settle the case using the Cafcass Officer's conclusions as a basis for agreement. However, if this is not possible, the Court will usually then make arrangements for the case to be given a final hearing date. Sometimes further reports may be requested, and the Court can make virtually any order it feels is best for the child concerned, so sometimes the outcome is something that neither party considered. It is therefore very important for the person applying for the order to consider his or her situation very carefully not just at the start of the case, but at every stage during it.

Parental Responsibility & Parental Responsibility agreements

1.    Who has parental responsibility?

A father and mother of a child who are married to one another automatically have parental responsibility for the child. If the parents are not married to one another, only the mother has parental responsibility unless the father's name and declaration are on the child's birth certificate. Where a person has a Residence Order for a child they have parental responsibility; for example, a grandparent or other relative or person with whom the child is actually living (or has been living) may seek residence. Just because another person acquires parental responsibility does not mean that the parent or parents lose it, as more than two people can have parental responsibility at the same time.


English law does not try to define in any detail what parental responsibility means. Here are a few things that are included in the term:

(a) Looking after the child

Providing care, especially for the younger child, and housing for all dependent children is one of the essential

responsibilities of any parent.

(b)Contact with the child

Although it may not be an absolute right, a parent not living with the child has a strong claim to contact.

(c)Medical treatment

Generally speaking, those with parental responsibility can give consent to medical treatment; but so too can a mature child give consent to his or her own treatment.


Parents have a responsibility both as parents, and at law, to ensure their child is educated.

2.    Parental Responsibility


The child's mother and a married father have Parental Responsibility automatically; from December 2003 so will an unmarried father whose name appears on the child's birth certificate. Parental Responsibility is given as part of other orders such as Adoption, Residence or Care Orders. The child's father (and from December 2003 also step-father) can also acquire Parental Responsibility: -

(a) Parental Responsibility Agreement

Parents may agree that the father (or step-father) should have parental responsibility, but that agreement is only effective if a formal document is signed by both parents and witnessed by a court official. These are very straightforward documents, and if the parents are in agreement, there is no difficulty about recording this in a Parental Responsibility Agreement. However, it does have a significant legal impact and legal advice should always be sought before entering into such an Agreement


(b) Parental Responsibility Order

If a mother refuses to agree to the father (or step-father) having parental responsibility, then he can apply to the Court for a Parental Responsibility Order.


(c) Residence Order

By obtaining a Residence Order in his favour the father (or step-father) will have parental responsibility and at the same time the Court must make a Parental Responsibility Order.

(d) Marriage of father & mother

Where the father and mother of the child marry the child is legitimated and as result the father then has parental responsibility.


(e) Appointment as child's guardian

The father can be appointed guardian by the child's mother. His appointment takes effect on her death and as guardian he then has Parental Responsibility.

3.   Financial responsibility for the child

Even if the father does not have Parental Responsibility he does not cease to be the child's parent, biologically and at law, and he is still liable to maintain the child financially.

Testamentary guardians for children

Everyone should have a will, but it is especially important to have one when there are children under 18 involved. Even if your first choice for a guardian would be the other parent, who may or may not have Parental Responsibility , you should still consider what you would want to happen to the children if the other parent died first, or at the same time. When a parent or other person with a Residence Order appoints a guardian in their will, that guardian will take over Parental Responsibility for the child immediately upon the resident parent's death. This will also happen where there is no one else with Parental Responsibility. Even if there is a surviving person with Parental Responsibility , then the guardian appointed by the parent's will still has rights to ask the court to alter the arrangements for the children if he or she feels it is necessary.


Making a will is not expensive, and does not have to be made “for all time”. They are easily reviewed or amended these days. Not only should you consider the position in respect of a guardian for the children, but you can also select your own Trustees to administer the children's inheritance and fix a later date for the children to receive significant money – i.e. 21, 25 or 30 years of age. Without a will, you will not have any control over the destination of your estate.

Child maintenance and the Child Support Agency

The Child Support Agency took over the calculation of Child Support from the Courts in 1993. Since then the Agency has had a very bad press, some of which is deserved, some of which is not.


The Agency now uses a fairly simple but rigid formula to calculate a figure for child maintenance, which can give an unrealistic result when considering other circumstances in a particular case. The formula allows for a fixed percentage of the Non-Residential parent's net income – between 12½% and 25% - regardless of housing costs, loan repayments etc. There will be a reduction of 1/7 th for each night on average the child(ren) stay overnight with the Non-Resident parent, provided there are at least 52 overnight stays a year.


It is still possible to come to an arrangement "outside" the Child Support Agency, although the Courts have a very limited jurisdiction to deal with child maintenance. Where the parties can reach agreement on an amount of child maintenance, usually in line with the Child Support Agency's formula - the agreement can be made into a “written maintenance agreement”, or as part of a divorce financial Consent Order. Generally, where there is a written agreement or order, the Child Support Agency is less likely to become involved with child maintenance. The agreement or order is enforceable itself as a contract between the parties.


© Karen O’Neill & Co., Family Law Solicitors   2004