Child Act Applications Factsheet
CHILDREN ACT 1989
The Children Act 1989 governs private law applications. The primary principle of the Children Act is the child’s welfare. This is the Court’s paramount concern. The Court has to consider how the child’s needs should be met. To do this, they use the ‘Welfare Checklist’.
The Court also has to ensure that any delay is avoided within proceedings that would be prejudicial to the child’s welfare. Also to be considered is the ‘no Order principle’, meaning that the Court should not make an Order under the Children Act 1989 unless the Order being in place would be better for the child than making no order at all. The Court must be satisfied that the parent in the life of the child concerned will further the child’s welfare.
THE WELFARE CHECKLIST
- The ascertainable wishes and feelings of the child concerned (considered in the light of his/her age and understanding),
- The likely effect on him/her of any change in his/her circumstances,
- His/her physical, emotional and educations needs,
- His/her age, sex, background and any characteristic of his/hers which the Court considers relevant,
- Any harm which he/she suffered or is at risk of suffering,
- How capable each of his/her parents and any other person in relation to whom the Court considers the question to be relevant is of meeting his/her needs,
- The range of powers available to the Court under the Act in the proceedings in question.
SECTION 8 ORDERS
The orders are:
- Child Arrangements Orders,
- Prohibited Steps Orders, and
- Specific Issue Orders
CHILD ARRANGEMENTS ORDERS
This deals with the arrangements as to with whom a child is to live, spend time or otherwise have contact with.
The person with whom the child lives must be able to make everyday decisions regarding the upbringing of the child.
If the Order is granted to a non-parent, they will be granted shared parental responsibility with the parent but it will be limited in as much as the non-parent will be unable to consent to or refuse to consent to an adoption or appoint a guardian.
If such an Order is in force, no person may:
- Cause the child to be known by a new surname, or
- Remove him/her from the UK for over one month,
without the written consent of every person who has parental responsibility for the child or the leave of the Court.
The person that the child is not living with will instead spend time with the child. This could be in the daytime, overnight or for extended periods of time. This person may instead have other forms of contact, such as letters and telephone calls, depending on the circumstances of the case.
The accepted approach to the subject of the arrangements of the child is that there is a presumption that the child will be benefited by retaining contact with both parents, and this should be allowed unless it can be shown to be detrimental to the child’s welfare. If there is a contested application, then it is a matter for the Court to decide.
Of particular concern is the question of domestic violence, primarily where the child is not a victim but may have observed violence, or the caring parent is at risk. The Courts are more reluctant to order a child to spend time with a person where domestic violence is an issue without first considering the evidence very carefully.
If there are difficulties after the making of a Child Arrangements Order then either parent can return the matter to the Court to consider enforcing the order. The Courts have a variety of options from altering the order to try to get something that is workable, committing the non-co-operative parent to prison or in extreme circumstances there could be a change to who the child lives with.
PROHIBITED STEPS ORDERS
A Prohibited Steps Order is an order prohibiting steps which could be taken by a parent in meeting his parental responsibility for a child and which is of the kind specified in the order.
The order covers steps which fall within the area of parental responsibility. This type of order is intended to deal with individual or single issues in a particular case and is meant to prevent a particular step being taken. A common example would be an order preventing the removal of a child from the UK in a case where there was no residence order in force.
SPECIFIC ISSUE ORDER
A Specific Issue Order is an order giving a direction for the purpose of determining a specific question which has arisen or which may arise in connection with any aspect of parental responsibility for a child.
It is normally intended to deal with a single issue, and so is similar to a Prohibited Steps Order. It is also limited by the requirement that the matter be within the area of parental responsibility. Where there is a dispute between the parents on a specific matter, the Court can resolve the matter by granting this type of order and stating the necessary course of action. Such an area of conflict could be the issue of a child’s education.
Family Assistance Order
Another type of order introduced by the Children Act 1989 is the Family Assistance Order.
In family proceedings, the court can make a Family Assistance Order requiring either a probation officer or a local authority officer, usually a social worker, to be made available to advise, assist and befriend any person named in the order. However, before the order can be made, the local authority must agree to making the officer available.
With the exception of the child, these persons, when named in the order, are required to consent to the order being made. The order can only be made for a maximum of six months and will only be available in exceptional circumstances.
This order will only be made by the Court on its own motion and no applications can be made for this type of order. Due to the short time scale and the difficulties in getting a social worker appointed, whilst the making of the order may be seen as best practice, in reality they are rarely used.
WHO CAN APPLY FOR SECTION 8 ORDERS?
The following persons are entitled to apply to the Court for any Section 8 Order with respect to a child:
(a) Any parent or guardian of the child,
(b) Any person with whom a child lives under the terms of a Child Arrangements Order
The following persons are entitled to apply for a Child Arrangements Order with respect to the child:
(a) Any party to a marriage (whether or not subsisting), in relation to whom the child is a child of the family,
(b) Any person with whom the child has lived for a period of at least three years,
(c) Any person who:
(i) in any case where a child lives with them under the terms of a Child Arrangements Order which is in force with respect to the child, has the consent of each of the persons in whose favour the order was made,
(ii) in any case where the child is in the care of the local authority, has the consent of that authority,
(iii) in any other case, has the consent of each of those (if any) who have parental responsibility for the child.
If not included in the above groups, then they must apply to the Court for permission to apply for an order.
The factors that the Court has to consider when dealing with an application for leave are as follows:
(a) The nature of the proposed application for the Section 8 Order,
(b) The applicant’s connection with the child,
(c) Any risk of that proposed application disrupting the child’s life to such an extent that he/she would be harmed by it, and
(d) Where the child is being looked after by a local authority:
(i) the authority’s plans for the child’s future, and
(ii) the wishes and feelings of the child’s parent
HOW TO APPLY FOR A SECTION 8 ORDER
- Attend a mediation information and assessment meeting (MIAM) (except when exempt for reasons such as domestic abuse, distance and unavailability of a mediation service)
- An application is made on a Form C100 (and Form C1A if you consider the child to be at risk of harm) and issued into Court.
- The case will be allocated to a gatekeeper in the Family Court and papers submitted to CAFCASS, who will carry out safeguarding checks and make an indication as to how the case should move forward. CAFCASS are social workers attached to the Court.
- The Court may ask you to provide further information or attend mediation if not already done so.
- First Hearing Dispute Resolution Appointment (FHDRA) – Within 5-6 weeks of the application being issued it will be heard by the Court. We would hope that an agreement could be reached and an order made. If this is not possible, statements by both parties may need to be prepared, setting out their positions. The Court may also require CAFCASS to complete a report giving their recommendation as to what order should be made. You could also be ordered to attend a Separated Parents Information Programme or further mediation.
- Dispute Resolution Appointment (DRA) – This hearing will be listed to consider your case further. If after considering any documents filed an agreement can still not be reached, the Court will order a final welfare hearing.
- Final Welfare Hearing (FWH) - Both parties will give evidence and the Court will make a final order.
- If a party goes not comply with the order it can be returned to the Court and a hearing listed within 20 days, before the same Judge if possible. CAFCASS may need to do further safeguarding checks and make an indication as to how the case should move forward.