The importance of children in family law

The importance of children in family law

As we all wait patiently for the arrival of the new royal baby now feels like an apt time to remind ourselves of the importance of children and the priority that they are given in Family Law.

Financial issues: married parents

When it comes to dividing financial assets on divorce children under the age of 18 are the first consideration of the court and this principle is enshrined at paragraph 25 (1) of the Matrimonial Causes Act 1973.  The link to the relevant section can be found here.

Financial issues: unmarried parents

Where parties are not married and they require the court’s assistance to deal with financial issues upon their separation claims are sometimes made under the Trusts of Land and Appointment of Trustees Act 1996.  This gives the court powers in relation to property.  It is usually the case that one party is looking for a declaration that they have a greater interest in the property than is shown on the legal title, for example, that they have an interest where the title shows it is in the other persons sole interest or where parties hold the legal title jointly that there interest is more than 50%.

Section 15 Trust of Land and Appointment of Trustees Act 1996 sets out the matters to which a court is to have regard in any application.  This includes the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home.  It is important to note that children under this act are not given the same priority as they are under Section 25 of the Matrimonial Causes Act.   They are one of the factors rather than first consideration.

Where parents are unmarried, aside from any application under TOLATA (as previous), an application could potentially also be made for financial provision for children under Schedule 1 of the Children Act 1989.

Under this section orders can be made in relation to periodical payments (maintenance), lump sums, requiring a settlement or transfers of property.  Applications under this section are usually made by parents on behalf of children but can be made by children themselves in certain circumstances (often to cover further education costs).

Children issues: generally

Moving away from the financial issues there are sometimes issues to resolve on separation regarding children themselves to include the time that they spend with each parent, which school they should attend, where they should live, what they should be called and so on.

The first priority of the court in determining any of those questions is the welfare of the child and this is set out at Section 1 of the Children Act 1989 

Section 1(3) of that Act sets out the particular circumstances which a court should have regard to which include:

1. the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
2. his physical, emotional and educational needs;
3. the likely effect on him of any change in his circumstances;
4. his age, sex, background and any characteristics of his which the court considers relevant;
5. any harm which he has suffered or is at risk of suffering;
6. how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
7. the range of powers available to the court.

It is important to point out that in determining issues regarding the welfare of the children the court process is geared towards encouraging parents to deal with the dispute between themselves and agree matters wherever possible.

It is perhaps inevitable that the parties are more likely to comply with an order which they have agreed to rather than one which they feel has been forced upon them regardless of the fact that any such order should only have been forced upon them if the court was of the view that it was in the best interest of their child or children.