The research title will be Children rights in Matrimonial disputes. This is based on the fact that children find themselves in a dilemma when their parents are in a dispute. Disputes between the parents should not ruin the lives of their children. Children have their own rights which are going to be put forward in this paper to ensure they are granted in times of disputes. These rights may sometimes be ignored but this is a criminal offence which should be solved in the court of law.
Children have their rights in case of a matrimonial dispute and at this time, the child is subject to emergency protection order which is mostly termed as EPO. Emergency protection order is only applied in cases where the child needs genuine protection due to a serious dispute between his/her parents. Emergency protection order too the place of Safety orders in the Children Act 1989, ss.44-45. EPO is a very serious law which even entitles the child to be removed from their current residence when there is increased probability of harm due disputes between his/her parents. It is normally granted by the court when there is genuine evidence of harming the child due to continued stay in their current residence. EPO can even be applied without first notifying the parent and it can even be done within one day. If a parent is notified and they feel that they can protect the child from any harm during the disputes, they have a right to cancel it after 72 hours of application. The EPO is supposed to expire after eight days but if there is need for extension, it can be renewed for seven days.
Children have found themselves in a lot of problems and even sometimes getting harmed due to disputes occurring between their parents. There are children rights which are meant to protect children from harm in case of a dispute. Children rights during matrimonial disputes are provided in the Children Act 1989 where the welfare of the child is taken as a priority. In Section 1 (3) (a) in the Children Act 1989 provided that the wishes and desires of the child should be put in to consideration when the court is making any decision regarding the protection of the child. The protectionist aspect in the Act which provided that the best interests of the child must be protected when the court is making any decision was replaced by the right for the child to express their views and their desires be taken in to consideration when the court is making decisions. It is the right of a child who is caught up in matrimonial disputes to be listened to before any decision regarding their protection is made.
There are so many Children Acts which have been formulated with the aim of protecting children’s the rights and welfare of the children. It is from the Children Acts that the rights to residence and guidance are given in case of a matrimonial dispute. The children have the right to get a responsible guardian to take care of him/her if parents are having a dispute which can lead to harm on the side of the child. Children in matrimonial disputes have the right to good upbringing, safety and income. For the welfare of the child, parenting responsibility is supposed to be passed to another person who is supposed to act temporarily on behalf of the real parents.
In the research paper, rights entitled to children in case of a matrimonial dispute are discussed. Various issues like whether or not the child is given priority and whether they are given a right to make decisions or choose their preferred custody will be clarified. Under circumstance when a court is required to make any decision about a child during matrimonial disputes, Children Act 1989 is used. The court should consider the feelings of the child but is depended on the age of the child. However, if the two parents are in an agreement, the opinion of the child may not be sought. Even when parents need a divorce, it can be delayed by the court depending on the welfare of the child. If the parents are in agreement, the involvement of the court is limited as a matter of ethics. Another ethical issues which is of concern if ignorance of the child’s welfare when dealing with divorce issues. It is also important to consider children’s understanding and feelings depending on the age of the child.
The research paper will consist of various assumptions like that Children Act 1989 is the only law that is used in giving children their rights during matrimonial disputes. Any other provisions for children rights during matrimonial disputes are incorporated in the Children Act 1989. This is one act which combines both public and private law. Another assumption is that children are actively involved court proceedings meant for solving matrimonial disputes.
The scope of the study will involve the discussion of the rights given to the children when solving matrimonial disputes. Research methods will involve direct observation of a court proceeding for a matrimonial dispute in order to find the children rights put in to consideration. Content analysis of previously recorded court proceedings will also be utilized to get the required information.
During a matrimonial dispute, children are faced with a lot of problems regarding their security, custody, feelings and welfare. It is in handling these problems that the issues of children’s right are addressed. It is the responsibility of the court to consider all these issues concerning the children in order to ensure that their welfare is protected. The child is not represented by the court only when both parents are in an agreement. Children Act of 1989 provides representation of the child when his/her parents are in a matrimonial dispute (Franklin 2005). The child is given the right to have his/her feeling, interests and views to be respected and considered when the court is making decisions. However, this is depended on the age of the child.
A child has a right to responsible parenting under whichever circumstance and it does not matter whether or not his/her parents are in a matrimonial dispute. If both parents are not in an agreement, they may choose a responsible person or the court may choose one who will be responsible for taking care of the child and providing for them (Franklin 2005). This happens only when there is a clear feeling which can be proved that continued stay of the child with his/her parents can lead to harm on the part of the child. Before the court comes to any decision about the child, it is always important to find out if or not the matrimonial disputes can be dissolved or not.
In section eight of the Children Act 1989, the child has the right to apply for residence away from his/her parents if there is probability of being harmed by a continued stay in his/her parents’ residence. This is mostly provided by application of emergency protection order (EPO) which replaced Safety orders in the Children Act 1989, ss.44-45 (WordPress 2011). The main purpose of EPO is to ensure immediate protection of the child where there is increased risk of harm. Any individual is given the right to apply for an EPO provided the court finds a sound evidence to show that the current residence of the child is likely to cause harm to the child. The period required to apply for EPO is usually one day and parents may not be notified especially there is a suspicion that if parents are notified, the child’s well being may get more harmed (WordPress 2011). The child has the right to change residence and go to a harmless residence but it is depended on the evidence provided.
EPO is something which is not supposed to be permanent, but is meant to exist just for some time until the probability of the child getting harmed is reduced. Under normal circumstances, an EPO is supposed to expire after eight days but can be renewed for an additional 7 days if need be (WordPress 2011). The child has a right to a guardian unless it can be adequately proved that giving the child another guardian apart from his/her parents will affect his/her welfare. This happens only and only when the matrimonial disputes between the parents are too pronounced to extend that both parents cannot take care of the child.
The child has the right to having his/her welfare protected and therefore, this is put in to consideration during court proceedings trying to solve matrimonial proceedings. During matrimonial disputes, the child has the right to protection and participation. As stated earlier, child’s welfare comprises all the rights provided to the child during matrimonial disputes (Franklin 2005). This is due to the fact that matrimonial disputes affect the child in many ways including psychologically. The wishes and suggestions of the child should be considered when making decision about the welfare of the child. When one says that the child has a right to protection during matrimonial disputes, it means that their well being and safety is protected so that they do not get any harm (Franklin 2005). In addition to this, the interests of the child are protected and their views and desires are put in to consideration when making any decision regarding the particular matrimonial dispute.
A child is any individual who is less than eighteen years of age. This is why they entitled to their rights in cases of matrimonial dispute to ensure that they are not harmed in the process. Children have a right to accommodation, upbringing, and property belonging to their parents or even his/her parents’ income (Franklin 2005). They even have a right to parental responsibility where all responsibilities from their parents are supposed to be carried out or otherwise someone else may be required to act on their behalf. The children are also given the right to choose the parent who should be given custody but this is depended on their age.
Despite any problems which may arise due to matrimonial disputes, the rights of children cannot be ignored because they are no supposed to suffer due to mistakes or problems of their parents. The research methods to be used include direct observation and secondary methods where listening will be done on previous recording of court proceedings (Franklin 2005). Ethical issues for the research must be considered to make sure sufficient information is obtained under just conditions. For children who are not of the right age to attend court proceedings, (The National Archives 2011) they have a right to get a representative who is usually appointed by the court to act on their behalf.
Franklin, B. 2005, The new Handbook of Children’s Rights: Comparative Policy and Practice, Routledge, London, 62.
The National Archives, 2011, Children Act 1989, viewed on June 20, 2011 from http://www.legislation.gov.uk/ukpga/1989/41/section/41
Wordpress, 2011, Appealing a Child Protection Order, viewed on June 20, 2011 from http://pdfagain.com/ebook/appealing-a-child-protection-order/