CHILD LAW CASE
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Introduction.
In the current modern world, parenting has become a matter of concern as most of the marriage have been faced with challenges with some leading to divorce. In contrast with the earlier days, today’s generation’s marriage has been faced with a lot of external factors that directly contribute to the success or failure of the same. The unfortunate thing about the external factors is that most of them are meant to destroy rather than built the marriage. Marriage virtues are no longer upheld, and cases of infidelity are on the rising edge. On the other hand, same-sex marriage has increased in numbers with parents adopting a child or adoption surrogacy. This issue surrounding marriages has caused many misunderstandings and conflicts regarding the legal parenthood leading to a good number of cases being taken to court. The following is a case study of two families and a single man in the middle of conflict and confusion regarding the legal parents of two children. The case is meant to explore the children’s law and the rights and responsibilities of legal parents who are married and divorced. The study also explores the issues surrounding surrogacy and its laws in the United Kingdom.
Parental Responsibility for Milo.
Milo is a child who was born in a legal marriage of the opposite sex, which later divorced. His mother, Katya, is now married to Priti, who they live with together him. According to the United Kingdom, Parental Responsibility law, a mother has direct responsibility for her child. In this case, Katya has direct responsibility for Milo regardless if she is married to Priti. Katya and Anton were previously married and got Milo, and hence both parents have a sense of responsibility towards the child. It is emerging that Milo is probably not Anton’s son, while he has been knowing he was the father. According to parental law, a person becomes a father legally if he is married to the child’s mother upon birth and if he has been listed on the child’s birth certificate. Since Milo was born during the marriage between Katya and Anton, he must be listed as the child’s father during birth. To this point, Anton happens to be legally the child’s father. In this case, Anton has a parental responsibility of the child as the father while Katya has parental responsibility as the mother. However, Katya is in another marriage now and Milo has been introduced to and seems somehow comfortable. Though Milo has been introduced to another marriage, Katya’s new spouse does not have any parental responsibility towards the child. This is because the child has not been associated with her in any legal form during and after birth. Anton has realized that the child is uncomfortable with the new marriage and wants to seek the child’s parental legal responsibility.
On the other end, Katya has created a barrier stating that Anton may not be the child’s possible father. Anton is cornered in this case since Katya may be talking about the truth, but he still has several options. According to section 8 of the Children Act of 1989, a person may apply for child arrangements if they are a party to the marriage about which the child is part of the family, any civil partner in a
in which the child is part of the family and any person who the child has lived with for three consecutive years. This has been listed under section 10(4) and 10(5) of the Children’s Act of 1989. Indeed, Anton qualifies to have legal Parental Responsibility of the child since he has lived with the child for more than three years. He has a close association with the child as a parent in the previous relationship, and the child has long enough recognized him as his father. Priti may not have a legal Parental Responsibility of the child since she has not lived with the child for more than three years, and she has not long enough stayed in a relationship where she is a co-parent of Milo. Therefore, Anton has a good chance of getting a PR if he applies since he has some of the basic legal requirements to become a Milos parent.
Factors That Will Be Considered by The Court for Specific Issue Order by Anton.
Upon Anton and Katya’s case reaching in court, the court will have to consider several factors before making section (8) order. The following regards and principles will act as the guidelines in making conditions and decisions: the child’s welfare if the delay in determining the section (8) order will affect the welfare of the child, the welfare checklist and the decision of not making the order unless the order will be of much benefit to the child.
Welfare Checklist.
The welfare checklist is one of the most important factors that must not be overlooked in determining the child’s residence and custody. According to section 1(1) of the children’s act of 1989, when a court is presented with a civil case on a child’s upbringing, the child’s welfare is paramount. The child’s wishes and feelings as far as his understanding are the first fulfillment. Milo is six years old enough for him to make his wish. He might be comfortable living with his mother and her spouse or the dad alone. This decision is based on the child alone and should not be influenced by either parent. The physical, educational and emotional needs are other critical factors that need to be established before section order (8) is enforced. What is the best education facility that the child should be enrolled in? Which parent does understand the child more than the other? Which environment is best for the child to grow around? This are basic questions that the court will be seeking to get answers. Based upon an assessment from the local authorities on both Anton and Katya, the court can establish the parent that fits all the qualifications. The likelihood of the child to change based on the circumstances given is another critical aspect. The child is either to join a single-parent family with the dad or join the same-sex marriage of his mother and Priti. Based on Milos’s reactions to both families, the court may thereby decide on the most suitable home for the child.
The sex and age and other characteristics are considered essential in establishing the PR for Milo. Milo is a boy, and maybe best he lives with his dad since her mom lives with her spouse, who is the same sex and may not be comfortable in his teenage years. His dad is likely to guide his boy on becoming a man as he has been termed as a man of virtual and religion. This is conditional if his dad is assessed not to show any irresponsible behaviors to his child about his living conditions and lifestyle. The child will also be assessed for any harm he has suffered in the past or the likelihood of his suffering in the near future. Lastly, on the essential needs, the court will have to establish how capable are the ones claiming the section (8) order meet the child’s needs. This is very important to avoid any situation where the child lacks basic needs or the needs he has been getting in the past with ease. With the welfare checklist having been completed, the court may then proceed to consider other factors that are in place.
Avoidance of Delays.
According to section 1(2) of the Children Act of 1989, “In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.” This means that the court may fail to uphold section (8) order to protect the welfare of the child. Milo’s case is complicated since his former parents are divorced, and it happens one parent may not be the biological parent. On the other hand, the mother has been married again to a lady, and the dad wants custody. At the same time, the new spouse to Katya is a surrogate to some couple. The issues surrounding the welfare of Milo are complicated, and it may take a longer time to settle down the issues. Hence, due to avoidance of delays and the child’s welfare, the court may decide to make a fast decision that will protect the child from any psychological and emotional harm.
Decision On Whether to Make an Order or Not.
Regarding section 1(5) of the Child Act of 1989, in a case where a court is presented with a decision on whether to make a decision or not it shall not make the order unless the order has a positive implication as far as the welfare of the child is concerned. In this case, where the child’s stability and security are at risk, the court needs to make a ruling to ensure the child’s welfare is as required by the Child Act. Milo has established a good relationship with both her mum and her new spouse and, at the same time, his dad. If the court finds Milo’s environment conducive for his welfare, Anton may not get custody of the child since there may not be major issues. On the other hand, if the court finds the environment in which the child is growing is not conducive, a decision has to be made by the court. This factor is very important as it determines whether the parties should continue with the case, or they should come into terms with the issues and raise the child together, however apart. From Milo’s case, he has not had any major challenges in his new home, and hence changing his environment by enforcing an order may not be the decision that the court will uphold. This puts Anton PR at risk.
Factors Considered Before Application for an Issue Order.
The conditions and the procedure of the application for an issue order have been documented in the Family Procedure Rules 2010 in part 12 under the Child Arrangement Program (CAP). The program remains relevant and applicable. A dispute has arisen among parents or families who are separated and have issues organizing themselves as far as the child’s welfare is concerned. The program is crafted to make parents reach an amicable agreement, especially outside the court. Before applying an issue order, the parents in dispute are required to attend a mediation information and assessment meeting (MIAM). This helps in solving the issue outside the court. Anyone who is not entitled to apply for an issue order requires the courts to apply for the same. If permission for the application is granted, a C2 form must be filled, stating reasons for the applications. If one is entitled to apply for an issue order, one must file the C100 form, where they will be required to confirm they passed through MIAM. Where there is a case of violence, abuse, or harm to the child, a C1A form is filed. The factors presented are determined as to whether Anton can proceed with the issue order or not.
For one thing, Anton has not tried any MIAM to sort out the issue at a preliminary stage. On the other hand, he has no evidence that shows that there could be possible violence or harm that the child has faced while in the company of his mother and Priti. Hence, Anton’s application may fail to grow through as there are no clear issues that have made Anton apply for the issue order. On the other hand, once Katya brings up the issue of Milo’s real father to the court, Anton will be disadvantaged, and he will have a weak case. The conditions for an application for an issue order places Anton in a disadvantaged position hence making him more unlikely to take his son for circumcision. Hence Anton should look for other alternative ways of approaching this issue since going by the court way will make him a looser at the preliminary stages of the court processes.
Court’s Likely Approach to The Uncertainty Over Milo’s Paternity.
According to section (8) of the Childs Act of 1989, several right ways make one a legal father. Firstly, one may become a father upon the mother getting the child when they were married. This means that the mother and father of the child should be legally married during the birth of the child. Depending on which part of the United Kingdom the child was born, one may become a child’s father if he is listed on the child’s birth certificate. If the parents jointly adopted the child, they both have legal responsibility for the child. They also keep the parental responsibility even after their divorce. For unmarried parents, they only become legal parents if both the mother and the father both register for the child’s birth, get a parental responsibility with the mother of the child, or get a court parental responsibility. In the case study, it is not indicated if indeed Anton and Katya registered as parents of Milo while they were still married. If they did register, then Anton is a legal parent to Milo unless disputed based on DNA factors. Anton also qualifies to be the Milos father as, during his birth, he was legally married to Katya. They also raised the child together as parents before they took divorce. The major problem of the issue order raised by Anton is if Katya will respond with the claims that Anton is not the biological dad.
The court decision on this matter will be guided by the Children Act of 1989. According to the Act, the child’s welfare is paramount, and any decision that the court will choose to uphold will be in favor of the child. From Anton’s argument, there is no big issue that has arisen; his only concern is that he feels his son is not comfortable where he is and needs him circumcised. Katya is against Anton’s religious believes, and hence she is becoming reluctant to allow Anton Parent, his son. Katya has a direct PR for the child. The case has more weight on her. The court’s rational approach is to rule in favor of Katya as she has not done anything harmful to the child, and she is the legal mother. She is likely to be given full custody of the child while Anton will be given parental responsibility but not child custody. If the case becomes complex and biological parents’ issue is brought about, there is a likelihood that Anton will lose the case.
Lily’s Legal Parenthood.
Surrogacy having been declared legal in the United Kingdom, a lot of couples have used it as an option of getting a child. If a couple chooses to use a surrogate to sire their child, they will belong to the surrogate at birth. The spouse to the surrogate will also be the father to the child, but this will be restricted just at birth. After the child is born, legal parenthood is transferred by order of adoption or parental order. If any misunderstandings arise regarding who the child’s parents should be, a court will make a decision based on the child’s best interest. For surrogate agreements, the surrogate and the couple will make a decision.
It should be noted that surrogate agreements are not enforced by UK law regardless of the agreements and any payments made, if any. In this case, Lily’s current legal parents are Katya and Priti, as they are currently legal couples who one of them sired the child. For Daisy and Karim, they will have to wait until an adoption order is enforced. The chances of success of Daisy and Karim to become legal parents for Lily are high since Priti and Katya are already willing to give them the child as they agreed. If they change their mind, their chances of having the baby are also high as they are the current legal parents. In other words, the agreement and the payments that were done to Priti does not make her not become the legal parent by default. Hence it is the willingness of Priti that makes both Karim and Daisy Lily’s legal parents. The current parental responsibility lies on Priti and Katya, and after a parental order, the child now becomes obligated to Daisy and Karim.
Conclusion.
The dynamics of modern-day marriages are changing over time, and new laws and policies are coming in place to protect the welfare of the children. Divorce cases are on the rising edge, and many children are raised by single mothers, while grandparents and foster care raise others. The case of Anton against Katya represents how modern-day parenting has been faced with a lot of external issues with most of them ending up affecting the children. Milo is a child who is a victim of the circumstances of the modern world. He has been moved from a different-sex marriage to same-sex marriage. The question remains whether he will adapt to the new environment easily. Thus, a court ruling will be effective in determining the best care and residence for Milo.