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Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
Children - overviewParental responsibility
An unmarried father does not automatically have parental responsibility if his child is born before 1 December 2003 (or 4 May 2006 in Scotland). He has several options, including:
entering into a parental responsibility agreement with the mother
obtaining an order for parental responsibility
obtaining a residence order in respect of the child
After 1 December 2003 (or 4 May 2006 in Scotland) the father may acquire parental responsibility by registering the child’s birth jointly with the mother at the time of birth or re-registering the birth jointly with the mother at a later date.
On a father’s application for parental responsibility, the court considers: the degree of commitment the father has shown the child; the degree of attachment between the father and child; and the father’s reasons for applying. Parental responsibility entitles the parent to be consulted in relation to issues relating to a child’s welfare such as a change of name, the need for any medical intervention and as to how the child is to be educated. Any dispute as to how parental responsibility is exercised would be the subject of an application for a specific issue or prohibited steps order.
Change of name
A child’s surname must be registered at birth under the Births and Deaths Registration Act 1953. This is the mother’s responsibility where the parents are unmarried. A child’s surname can be changed after registration by deed poll or, informally, by use of a different name. Where more than one person has parental responsibility, neither person is entitled to change the child’s name without consulting the other. If a residence order is in force, the Children Act 1989 (ChA 1989), s 13 should be used to bring an application to change a surname. In all other circumstances the application should be for a specific issue order. A change of surname will only be ordered if it would be in the interests of the child.
The court takes into account relevant factors, including:
the child’s welfare
the link of the name between the child and both parents
the quality of the relationship between the child and both parents
The Child Maintenance and Enforcement Commission has now assumed responsibility for the Child Support Agency (CSA). The CSA currently retains jurisdiction to calculate maintenance where the parent with care of the child (PWC), the non-resident parent (NRP) and the child are habitually resident in the UK. A PWC has day-to-day care of the child for 104 nights a year or more. An NRP does not share their household with the child, who lives with the parent in care. The child must be under 16, or under 19 but receiving full-time, non-advanced education.
The basic rate of maintenance is a percentage of the NRP’s net weekly income, namely:
15% for one child
20% for two children
25% for three or more qualifying children
The rate is reduced if the NRP has other children living in their household, and where the child has overnight contact for one or more nights a week.
The PWC may apply for an upwards variation of maintenance if they believe that the NRP has additional or undisclosed financial resources. Applications can also be made for revisions and supersession.
New provisions effecting PWCs who are in receipt of state benefits came in to force on 27 October 2008. These include increasing the £10 per week disregard to £20 and allowing the PWC the choice of arranging child maintenance with the CSA or by way of a private agreement. See Financial Provision: Periodical payments for the benefit of children.
The court has jurisdiction to make child periodical payments orders in circumstances including where:
there is a consent order: although a written agreement may be converted into a maintenance order, once it has been in force for a year, the PWC or NRP may apply to the CSA for a child maintenance calculation
a child is over 16, or over 19 and in full-time education, as they fall outside the child support legislation
the child or one of their parents is habitually resident overseas
the application is for school fees, tertiary education or vocational training
the child support maximum figure has been reached, when the NRP’s income exceeds £104,000 a year net
a child is disabled, to cover attributable expenses
Schedule 1 to the Children Act 1989
Maintenance provisions under Sch 1 to the ChA 1989 are used only where a case falls outside the CSA’s jurisdiction. A parent or guardian may apply for the range of orders as above. A child over 18 can apply for periodical payments, normally for financial support for further education or vocational trading.
Lump sum orders are available under Sch 1 for past expenditure, eg reimbursement of expenses connected with the birth, and for future expenditure, eg a family car or a school fees fund. There is no limit to the number of lump sum applications that can be made until the child reaches 18.
A transfer or settlement of property order can be made once, effectively providing a home for a child increasingly until 21, or completion of full-time education up to completion of first degree level.
Sch 1 applications can be made in the family proceedings court but their jurisdiction is limited to lump sum payments of £1,000. The applications are more usually made in the county court or the High Court where the financial jurisdiction is unlimited. Since the 6 April 2011 applications under Sch 1 are subject to the Family Procedure Rules 2010 which provide for the procedure for ancillary relief (financial provision) applications be used for Sch 1 proceedings.
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