The Best Interests of the Child and Resolving Post Separation Issues

The aftermath of a divorce or separation can be turbulent and where children are involved, issues in relation to custody, contact and access can inevitably arise. The Children (NI) Order 1995 (hereinafter referred to as ‘The 1995 Order’) creates a framework that is designed to deal with these issues in a manner that protects the best interests of the child.

This article aims to decode The 1995 Order with a view to making the contents of the legislation more accessible to parents who may be dealing with post separation issues and can help them to understand their rights and responsibilities as parents.

It is always desirable to reach an amicable agreement between separating parties and our family law solicitors would advocate opening a dialogue between parties through mediation in an attempt to resolve any thorny issues. Unfortunately, sometimes this process does not work and seeking a resolution through the Courts may be the only viable option.

Article 8 of The 1995 Order contains four main Orders that deal with common problems that can arise following a separation, each of which will be explained in this article. The relevant Orders that can be made in a Family Court include a Residence Order, Contact Order, Specific Issue Order and Prohibited Steps Order.

If the issue relates to with whom a child or children should live post separation and an amicable agreement can not be reached, then seeking a Residence Order from the Court is the solution. A Residence Order will be put in place by a Judge in these circumstances to determine who will have primary custody of a child. The old legislation governing custody was quite final in its allocation of custody, however, with the new legislation if circumstances change then an application can be made to the Court to vary an Order. This may result in a transfer of custody to another parent for example.

If the issue relates to lack of agreement as to contact with a child or children following separation, then the remedy that should be sought is a Contact Order. The Judge will make an Order on whether Contact with a specific party will be permitted. Other considerations such as frequency and nature of contact can also be dealt with as part of a Contact Order. In certain circumstances a Judge may also Order that contact be supervised.

Specific Issue Orders are self-explanatory. Where a specific issue arises as to parental responsibility the Court will make an Order on the specific issue. For example, if there is disagreement on issues such as a child’s surname, religion or schooling then an Order can be sought to determine who is responsible for making these decisions.

A Prohibited Steps Order can made to prevent a parent from taking a specific step without the consent of the Court. The most common example of this is when a Prohibited Steps Order is which prohibits a parent to take a child or children outside of the jurisdiction without the consent of the Court.

All of the Article 8 Orders will take in to account a variety of factors, most importantly the best interests of the child must be the main priority in all proceedings. A Judge will take into consideration a child’s age, circumstances, specific needs and their own wishes when deciding whether to make an Article 8 Order.
The Judge may also Order that a Child Welfare Report be obtained from social services or from the Court Children’s Officer to assist their final Judgment.

At P.A.Duffy and Company our expert family law solicitors are vastly experienced in making applications for each of these Orders. The process will initially involve one of our family solicitors meeting a client and taking their instructions. Attempts will then be made to resolve any issues through mediation. If this cannot be achieved, then your solicitor may advise you that the next step is to seek an Article 8 Order. They will explain the process to you and ensure that your interests, and the interests of your child or children, are protected.

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