When parents separate, deciding where the children will live and how much time they will spend with each parent is often the most important part of the process, and the hardest. Many families reach an arrangement between themselves. Where that is not possible, the court can decide. This guide explains how arrangements for children work under the law in Northern Ireland, what the court looks at, and where to get help.
Agreeing arrangements without going to court
Wherever it is safe to do so, it is usually better for children if their parents agree arrangements between themselves. An agreement is generally quicker, less stressful and easier for everyone to live with than a decision imposed by a court. Arrangements can be reached:
- Directly between parents. Many parents agree a pattern of care between themselves, sometimes written down in a parenting plan.
- Through mediation. A trained, independent mediator helps parents discuss the issues and work towards an agreement. Mediation is not suitable in every case, particularly where there are concerns about domestic abuse.
- Through solicitors. Solicitors can negotiate on your behalf and help make sure that what has been agreed is clearly recorded.
The court will not make an order simply because parents have separated. It will only make an order where doing so would be better for the child than making no order at all.
Parental responsibility
Parental responsibility means the legal rights and responsibilities a parent has for a child, including decisions about their education, health and religion. In Northern Ireland:
- A child's mother automatically has parental responsibility
- A father has parental responsibility if he was married to the mother when the child was born, or if he is named on the child's birth certificate for a birth registered on or after 15 April 2002
- A father without parental responsibility can obtain it by a formal agreement with the mother or by a court order
- Other people, such as grandparents or step-parents, can obtain parental responsibility through a court order, for example a residence order in their favour
Separation does not end parental responsibility. Both parents keep it, and both should usually be consulted on major decisions about the child.
Orders the court can make
If parents cannot agree, either of them can apply to the family court under the Children (Northern Ireland) Order 1995. Grandparents and other family members can also apply, though they will usually need the court's permission first. The main orders are:
- Residence order. Decides who the child lives with. It can be made in favour of one parent, or both, where the child divides their time between two homes.
- Contact order. Sets out the time a child spends with a parent they do not live with, or with others such as grandparents. Contact can be direct, such as visits and overnight stays, or indirect, such as phone and video calls.
- Prohibited steps order. Stops a parent from taking a particular step without the court's permission, such as moving the child to another country.
- Specific issue order. Resolves a specific disagreement, such as which school a child should attend or whether they should have a particular medical treatment.
You may come across the term 'child arrangements order' online. That term is used in England and Wales. Northern Ireland still uses residence and contact orders, and the process here is different, so it is important to get advice based on the law that applies to you.
What the court considers
In every case, the child's welfare is the court's paramount consideration. The court also recognises that delay is usually harmful to children. In deciding what is best, it will consider factors including:
- The child's wishes and feelings, in light of their age and understanding
- Their physical, emotional and educational needs
- The likely effect on them of any change in their circumstances
- Their age, sex, background and any other relevant characteristics
- Any harm they have suffered or are at risk of suffering
- How capable each parent, and anyone else relevant, is of meeting their needs
The court may ask a Court Children's Officer from the local Health and Social Care Trust to meet the family and prepare a report. Courts generally regard it as important for a child to keep a relationship with both parents, provided this is safe and in the child's interests.
If you have concerns about safety
If there has been domestic abuse, or you are worried about a child's safety, tell your solicitor at the outset. The court can put safeguards in place, such as supervised contact or contact at a contact centre, and in some cases may decide that contact should not take place.
Taking a child abroad, including across the border
For families in Newry, South Down and other border areas, this can be a practical issue. Taking a child out of the UK, including into the Republic of Ireland, without the consent of everyone with parental responsibility or the permission of the court can be a criminal offence. Where a residence order is in place, the person named in it can usually take the child abroad for up to one month, for example on holiday, without that consent. A permanent move abroad needs either agreement or the court's permission. Where a child has been taken abroad or kept abroad without consent, the Hague Convention on international child abduction may provide a route to their return.
Is legal aid available?
Legal aid may be available for family cases involving children, depending on your income and savings and the merits of your case. Legal aid in Northern Ireland is administered by the Legal Services Agency. We can tell you at the outset whether you are likely to qualify.
Arrangements for children are best dealt with carefully and early, before positions harden. Our family law team advises parents, grandparents and other family members on residence, contact and all aspects of children law, from our offices in Newry, Belfast and across County Down. The team includes director Jacqueline Malone, a member of the Children's Order Panel, the Children's Court Guardian Panel and the Hague Convention Panel. If you are also going through a divorce or separation, our guide to divorce and family law in Northern Ireland explains what to expect.
This article is general information about the law in Northern Ireland and is not legal advice for your situation. For advice on a specific family or children matter, speak to one of our solicitors. Call your nearest office or send an enquiry and a member of our team will be in touch within one working day.
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