Thus, because actions such as changing a child’s name and removing the child from the UK require the consent of all persons with parental responsibility, Keith may be able to stop Janet from taking these actions.
Orders in relation to children, available under the Children Act, may be made in any family proceedings, thus since Janet has instituted divorce proceedings, orders can be made in relation to Lucy. During the proceedings the courts will be required to observe three cardinal principles: the welfare principle (welfare of the child is paramount and given first consideration); the no order principle (making the onus on those seeking an order in relation to children to convince the court that an order is necessary); and the no-delay principle (court is required to be proactive in setting and enforcing a timetable in children cases).
Because Keith is a parent, he can apply for a section 8 order as of right, therefore will not be required to obtain leave from the court. There are four s.8 orders which Keith may wish to obtain in the proceedings: Residence Order – to enable Lucy to live with him, Contact Order – to enable Lucy to have contact with him, Specific Issue Order – to decide a specific issue eg Lucy’s name change, and Prohibited Steps Order – to prohibit certain exercises of parental responsibility.
When the court assesses the situation, the welfare principle will be of primary importance and so the court will need to go through the statutory checklist of factors contained in s.1 (3) of the Children Act 1989. When the court is assessing Keith’s application for a Residence Order, it will need to take into account various parts of the checklist. Notably, (b) ‘the emotional and physical needs of the child’ and (c) ‘the likely effect on him of any change in his circumstances’. When looking at these factors, it is obvious that forcing Lucy to live with Keith would not be appropriate as she has no connection with him yet. It could also be argued, as in the case of Brixey v. Lynas that Lucy needs to stay with her mother. The court in this case gave very strong weight to the proposition that a very young child needs to be with its mother and based this on common knowledge. This is similar to Lucy because Lucy has been with her mother since birth and so it would not be in her best interests to split them. However, there is increasing judicial enthusiasm for shared residence orders. Looking at the case of D v. D the court granted a shared residence order even though the mother and father were living in different jurisdictions.
In relation to a Contact Order, there will be a strong presumption that Lucy should have contact with her father as this is generally recognised as being in the best interests if the child in the great majority of cases. Applying Re R (minor) (contact: biological father) Keith will have a very strong chance of being granted a Contact Order. In this case the child had been brought up to believe that the mother’s partner was the natural father and had actually not seen the real father for 3 years (less time than Lucy’s situation) and still the court found that the child had a right to know both biological parents and so the father was allowed contact. However, for the Contact Order to have any practical effect Lucy will need to stay in the country and so the most important steps that Keith can take will be to obtain a Prohibited Steps Order. In the case of Payne v. Payne a similar situation to Keith’s was involved. In this case, the mother was finding it difficult to cope as a single mother and so wanted to relocate to New Zealand to receive help from family and friends. Even though the father argued to respect his Convention rights (article 8 – respect for family life) and for sufficient weight to be given to the need for contact with him, the court found it to be in the best interests of the child to be relocated. Keith could distinguish this case on the grounds that Janet is not currently suffering any hardship and so there is no need to relocate to another jurisdiction. However, Keith will need to show that it is in Lucy’s best interests to stay and have contact with him.
In relation to the change of Lucy’s surname, it is highly unlikely that this will be allowed because either the consent of Keith would be needed or Janet would need to get a Specific Issue Order in her favour from the court. In Re B (change of surname) a mother (on the request of her children) wished to change the surname of her children to that of her partners. This was not allowed as the court felt that changing the child’s surname would create even more distance between the child and the natural father and this was not in the best interests of the child. Hence, following from this case it would be most unlikely that Janet could change Lucy’s surname without the consent of Keith.
If Janet and Keith were not married originally then Keith would not have parental responsibility. This could have disastrous effects on the level of involvement in Lucy’s life. In order for Keith to obtain parental responsibility he will need to either: (a) be granted it from Janet (which is unlikely); (b) apply to the court for an order granting it; or (c) obtain a Residence Order which automatically confers parental responsibility. The best option would be for Keith to apply under the Children Act 1989 s.4 for an order granting parental responsibility as this procedure would be a ‘family proceeding’ under which the other relevant orders that Keith wants can be granted. In assessing whether the grant Keith parental responsibility the court will look at the degree of commitment Keith has shown towards Lucy (which is not very much so far); the degree of attachment which exists between them (not vary much, however this is not completely attributable to Keith as Janet has refused contact); and the reasons the father has for applying for the order (which have great weight). Because the welfare test also applies to these proceedings it is likely that Keith will be granted parental responsibility as it will be in Lucy’s best interests for Keith to be involved in decisions in her life (eg if he needs to give consent to emergency treatment). Also, it has been said that is it overwhelmingly in the child’s interests for both parents to have parental responsibility (Re P (minor) (Parental Responsibility Order). Once Keith has parental responsibility he will be able to proceed with applications for the s.8 orders in the way described above.
