When you go through a separation or divorce it is ultimately because your relationship has broken down. You may feel hurt, angry and resentful and furthermore, the trust you once had with your ex-partner may have diminished completely.

If you have children together then co-parenting can seem like an impossible task and you may no longer believe that your ex-partner has your child’s best interests at the forefront of their mind.

So what happens when you cannot agree? Can you make decisions regarding your children’s schooling, care and medical treatment on your own? 

Can you take your child on holiday without the consent of the other parent or challenge the decisions of a parent with primary residence of the child?

If one of you is unhappy with your children’s living arrangements, regulation of contact or decisions the other parent is making then what can you do?

The Myth

It is a common misconception that if you have primary care of your child, but no order from the court that regulates this, you are able to take your child out of the country, change the school they attend or make decisions about their medical care without the consent of the other parent.

Even when one parent is largely absent or seemingly disinterested, they are still entitled to participate in making decisions that affect your child if they have parental responsibility.

Parental Responsibility

Parental responsibility (PR) consists of the rights, duties, powers and responsibilities in law that a parent has in relation to their child. It enables a person with PR to make decisions about the child’s welfare and upbringing.

As a mother, you will always have PR for your children however as a father PR is only automatic if you are married to the mother of your child at the time of birth. If this is not the case then you can acquire PR. Most commonly this is by marrying the mother or being registered as the child’s father on the birth certificate. There are, however, other ways to obtain PR.

• Marrying the mother
• Entering into a PR agreement with the mother
• Obtaining a court order which gives you PR
• Adoption.

If both of you have PR for your children then you cannot fully exercise these rights independently of each other.

So we know the myth, but what about the reality…

The decisions you can make without each other’s input really only stretch to the day to day upbringing of your child. You may well have shared care arrangements and choose to allow your children to do different things in their free time, eat different foods and wear different clothes when they are with you. You are also able to do things such as making routine medical appointments, having daily control of their personal care and property, attending school functions and deciding which clubs they attend after school.

There are some decisions/events that you must inform the other parent of such as any emergency medical treatment for your children, changes of your address and living arrangements (such as..) that do not affect contact arrangements and holiday bookings in school holidays. You do not, however, need to obtain their permission to do things. 

There are a number of important decisions that have to be made for children that you cannot make alone if both parents have PR.

You cannot:

• Change or select their schools;
• Make applications for authorised absences from school;
• Decide living and contact arrangements for the children in the school holidays;
• Decide when your children can watch adult films rated over their age;
• Plan medical and dental treatment that goes beyond routine check-ups;
• Cease giving prescribed medication to your children;
• Change your child’s surname; or
• Relocate to another part of the country or abroad.

So what do you do if you cannot agree or if you think your child is at risk of harm?

If one parent is making a decision that harms or puts your child at risk of harm then you should refuse to co-operate with the decision (the court can make an order) and make an application to the court to prevent them from continuing with the action. This is regardless of whether it is a decision they need to consult you on. In some cases, it could be appropriate to withhold contact between your child and the other parent and to make an application to the court for regulation of this contact until they are able to re-establish trust and responsible parenting behaviours.

If your child is not at immediate risk of harm then, in the first instance, the court expects you to try and resolve these disagreements outside of the court system. This is because you, as parents, are the best people to make decisions about and for your children.

Not only that, but your child has a right to a relationship with both their parents and as such the courts will give weight to this right wherever it is safe and possible to do so.

Powers of the Court

The court has powers to make the following types of orders:-

• Child Arrangement Order (CAO) regulating who a child will live with. This can be one parent or both or another family member or guardian.
• Child Arrangement Order (CAO) regulating who a child will spend time with. The court can set out a contact arrangement when parties cannot agree.
• Specific Issue Order (SIO) giving permission to a parent to make a decision such as taking the child out of the country or making medical decisions
• Prohibited Steps Order (PSO) preventing a parent from taking an action in relation to their child.

A court’s first priority when considering how to regulate the contact and care of children will be the best interests of the child in question and the court is unlikely to be sympathetic to parents who cannot make a decision simply as a result of their dislike for each other.

The court is going to consider all the same factors that you, as parents, would consider when making a decision for your child including:-

• The wishes and feelings of your child in light of their age and understanding
• Their physical, emotional and educational needs
• The effect any changes will have on your child
• Your child’s age, background and personal characteristics
• Any risk of harm to your child
• The capability of each of you as parents to meet your child’s needs.

Making an application to court

Applications to the court for any of the above can be made on a C100 form that can be downloaded online from the gov.co.uk website. If there are any allegations of domestic violence then a C1A form should be completed and lodged at the same time. A court fee is payable at the time of application.

A specific steps order or a prohibited steps order can be made in urgent cases without notifying the other parent. These applications are known as ‘without notice’ applications and they should only be used in exceptional circumstances. If an order is granted it will be for a limited time only until the court can hear both parents case in full.

There are three main stages that the process will follow after the application is submitted; a first hearing dispute resolution appointment (FHDRA); a dispute resolution appointment (DRA); and lastly a final hearing. You will be expected to try and settle the disagreement yourselves at every stage of the process and a decision by a judge will not be made until the end of the final hearing.

This can be a long and expensive process and ultimately you are putting an important decision about your child in the hands of a third party so it is imperative to consider whether there are other ways of resolving the dispute along the way.

How can you try to resolve parenting disputes outside of the court?

There are other organisations that can assist in providing you with support in managing the resolution of parenting disputes and contact.

Attending mediation is an alternative to making an application to the court. It provides a forum in which you can both discuss your feelings and perspectives in the presence of a trained professional who can effectively mediate each of you and help you reach decisions.

Drawing up a parental agreement or shared parenting plan can help clarify what is expected of each parent, for example, living arrangements, education, money, religion, healthcare and emotional well-being.

There are organisations that facilitate family counselling to help you understand ways of broaching difficult topics and decisions. There are also parenting classes to help you cope with co-parenting and managing your parenting responsibilities as a single parent.

If you have any questions regarding parental responsibility, how to manage contact with your children and/or making children act applications to court then please do not hesitate to contact the Family team at Neves solicitors.

Our specialist family lawyers have many years of experience giving advice and assistance to parents regarding their children and are happy to discuss your situation. Get in touch by calling 0330 0945 500, email family@nevesllp.co.uk or complete our Contact Form and we'll get back to you.