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Law - Intro to English/ Welsh private
law cases
[Please note that this seminar does not cover
applications under
Schedule 1 of the Children Act].
s. 1(1) - The welfare principle (sometimes known
as the
"welfare test")
In deciding any question with respect to the upbringing of
a child
(administration of its property or the income arising out
of it) the
child's welfare shall be the paramount consideration.
The welfare checklist - s.1(3) and (4)
If the court is considering whether to make, vary or discharge
a
section 8 order and the making, variation or discharge of
the order
is opposed by any party to the proceedings or the court is
considering whether to make, vary or discharge an order under
Part
IV, the court shall have regard in particular to:- (see s.1(3))
(a) the ascertainable wishes and feelings of the child concerned
(considered in the light of his age and understanding)
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his
which
the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents is of meeting his needs;
(g) the range of powers available to the court under this
Act in
the proceedings in question.
The "no order" principle - s. 1(5)
-
The court shall not make an order under the Act unless it
considers
that doing so would be better for the child than making no
order at
all.
Delay - s. 1(2) -
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 child.
Procedure for applying for orders under the
Children Act:-
See the Family Proceedings Rules 1991 (only a brief summary
is given
here)
Rule 4.3 - Application for leave to commence proceedings
Note that a child's application for leave should be made in
the
High
Court, even if the proceedings are being or would be heard
in a
lower court.
Rule 4.4 - Application
1. File the documents referred to in 4.4(1A) - Forms C1- C4
or
C51
and such of the supplemental Forms C10 or, where appropriate,
a
statement in writing of the order sought. Where the application
relates to more than one child, include all the children in
one
application.
2. Serve the application and a form C6A on the relevant persons
(see Appendix 3 to the rules)
3. Upon receiving the documents filed, the proper officer
shall:-
(a) fix the date for a hearing or directions appointment,
allowing
time for service
(b) endorse the date fixed
(c) return to the applicant forthwith the relevant forms
Applications not on notice (formerly ex parte)
Rule 4.4 (4) provides that an application for
(a) a section 8 order
(b) an emergency protection order
(c) a warrant under s.48(9)
(d) a recovery order
(e) a warrant under s.102(1)
may be made not on notice.
The applicant must file the application in the
form in Appendix 1 to
the Rules -
(a) within 24 where the application is made by telephone;
(b) in any other case, at the time the application was made
and
in the case of an application for a s.8 order or an emergency
protection order, serve a copy of the application on each
respondent
within 48 hours of the making of the order.
If the court declines to make the order not on notice, it
may direct
that it be made on notice.
For guidance as to the making of not-on-notice orders, see:-
Re J (Children) (Ex parte orders) [1997] 1FLR 606 and
Re S (a child) (Family Division: without notice orders) [2000]
1FLR
308
Human Rights Act 1998 and the European Convention
Be aware of Article 6 - right to a fair hearing and Article
8
- the
right to family life.
Bear in mind that the Children Act was drafted with an eye
to the
Convention and the Courts do not favour the wholesale quotation
of
European authorities.
The right to a fair hearing is an absolute right:-
Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730 - a care
case
but Munby J held that the right to a fair hearing is not confined
to
the judicial part of the proceedings but to all stages of
the
litigation.
It is settled European law that restrictions may be placed
on the
right of the parent to family life with the child where the
interests of the child require it1. Similarly, where there
is a
conflict between the child's right to family life and that
of the
parent, the rights of the child are the paramount consideration:-
Yousef -v- Netherlands [2003] 1 FLR 210 See also Hoppe -v-
Germany
[2003] 1 FCR 176.
Be aware of and follow the Practice Direction at [2000] 2
FLR 429 on
citation of authorities.
1. Generally - be aware of and, where possible follow, the
Best
Practice Guidance in Children Act cases of June 1997 (reproduced
in
most of the text books).
Note that the court in family proceedings closely controls
the
management of cases, through directions hearings, control
of
instruction of experts and the filing of evidence
generally. There is also control of court bundles.
2. Court documents - be aware of the Presidents Direction
as to
documents to be filed in advance of the hearing. See Practice
Direction on Case Management [1995] 1 FLR 456 and the Presidents
Direction of 10 March 2000 [2000] 1 FLR 429 (replacing paras
5 and 8
of the Case Management Practice Direction). If your case has
been
commenced or is transferred to the High Court, the President's
Direction of 22nd March 2002 applies1. This provides for the
allocation of the case to one judge of the Division and regulates
the management of the case generally. Be familiar with the
requirements of this Direction.
3. Experts - there are clear rules regarding the instruction
of
experts. Experts must be independent of the parties and should
generally be jointly instructed, with one solicitor as lead
in the
instruction (almost always the Guardian's solicitor in care
cases
or
where a Guardian has (unusually) been appointed in private
law
proceedings.
Care must be taken as to the choice of expert. Find out before
you
go to court which expert (if any) your solicitor would like
to
instruct and make sure you have copies of the experts CV and
dates
of availability.
The court will make directions as to who is to be instructed,
whether there is to be leave to see/examine the child and
as to
timetabling.
For guidance as to the instruction of experts, experts
meetings/discussions see:-
Re G (Minors) (Expert Witnesses) [1994] FLR 291
Re CS (Expert Witnesses) [1996] 2 FLR 115
Re C (Expert evidence: Disclosure: Practice) [1995] 1 FLR
204
Re CB and JB (Care Proceedings: Guidelines) [1998] FLR 211
Re R(Care: Disclosure: Nature of Proceedings) [2002] 2 FLR
211
Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730
For a caution as to the care which needs to
be taken with whom to
instruct:
Re X (Non-Accidental Injury: Expert Evidence) [2001] 2 FLR
90
The Children (Allocation of Proceedings) Order 1991 regulates
where
proceedings may be commenced and deals with transfer between
courts.
The Family Proceedings (Allocation to Judiciary Amendment)
Directions 20022 allocates proceedings as between district
judges,
circuit judges and High Court judges.
Consideration of the transfer or allocation of the proceedings
must
be done as early as possible to avoid delay in timetabling.
As regards transfer from the Family Proceedings Court, the
criteria
in Article 7 of the Children (Allocation of Proceedings) order
apply. The case may be transferred to link with proceedings
in
another court or if transfer will otherwise mean a quicker
hearing. Usually, however, the application is made on the
basis
that the proceedings are "exceptionally grave important
or
complex"
and regard is had to:-
(a) whether there is complicated or conflicting evidence about
risk
to the child's physical or moral well-being or about other
matters
relating to the welfare of the child;
(b) the number of parties;
(c) conflict with the law of another jurisdiction
(d) some novel or difficult point of law
(e) some question of general public interest.
Refusal to transfer and transfer between county
courts
If the FPC refuses a transfer, application may be made to
a care
centre/divorce county court for an order transferring the
proceedings to itself.
The county court will consider the checklist in Article 7
(above)
and may, at the same time, transfer the proceedings to the
High
Court (under Article 12).
See Article 10 for transfer between county courts.
Under Article 11(2) Children (Allocation of Proceedings) Order,
the
county court has the power to transfer private law proceedings
back
to the magistrate's court. Appeal against this decision is
to a
judge of the Family Division or, where the order was made
by a
district judge or a deputy district judge or the Principal
Registry,
when the appeal is to the circuit judge.
C -v- Sollihull MBC [1993] 1 FLR 290 (also useful on delay)
L -v- Berkshire CC [1992] 1 FCR 481
R -v- South East Hampshire FPC ex parte D [1994] 1 WLR 611
Re A & D (NAI: Subdural haematoma) [2002] 1 FLR 337
Issue estoppel has limited application in children cases.
However,
the court may take into account findings of fact made in the
past.
In deciding whether (and to what extent) to do so, the court
has
an "entirely free hand"
Re S, S and A (care proceedings: issue estoppel) [1995] 2
FLR 244
Re S (discharge of care order) [1995] 2 FLR 639
Re B (Children Act proceedings) (issue estoppel) [1997] 1
FLR 285
The court has a wide discretion as to how to conduct family
proceedings. The judge is not obliged to hold a full hearing
but
may restrict the evidence and limit the scope of the proceedings:-
Cheshire County Council -v- M [1993] 1 FLR 463
W -v- Ealing LBC [1993] 2 FLR 788
Re N [1994] 2 FLR 992
Re B (minors: contact) [1994] 2 FLR 1
Re CB and JB [1998] 2 FLR 211
The section applies to both private and public family law
proceedings and permits the court, when dealing with any application
for an order under the Children Act 1989, to restrain future
applications without leave of the court.
The power to make such order should be used sparingly and
the order
should usually only be made on notice, although the court
may, in an
exceptional case, make it without notice or even without application.
Before making the order, the court must be satisfied that
the
welfare of the child requires a restriction on applications
by the
parent in question. It is usually only made where there have
been
repeated applications with little or no merit but, where there
is
cogent evidence that the child's welfare would be greatly
adversely
affected by a future application, the order may be made.
A s.91(14) order should normally be limited in time.
See especially:-
B -v- B [1997] 1 FLR 139, where Waite LJ said that s.91(14
should be
read in conjunction with S.1.(1), which made the child's welfare
the
paramount consideration. He said:-
"The judge must, therefore ask him or herself in every
case
whether
the best interests of the child require interference with
the
fundamental freedom of a parent to raise issues affecting
the
child's welfare before the court as and when such issues
arise".
Re P (Section 91(14) Guidelines) [1999] 2 FLR
573 Butler-Sloss LJ
(as she was then) reviewed the case law and extracted guidelines:-
(a) s.91(14)is to be read in conjunction with s.1(1);
(b) all relevant circumstances must be taken into account
in
considering whether to
exercise the discretion;
(c) any exercise of the s.91(14) jurisdiction is a statutory
interference with a person's right to access to the court.
However,
the section is HRA compliant since it does not bar access
to the
court but merely controls it.
(d) the exercise of s.91(14) requires great care and is to
be
considered the exception rather than the rule;
(e) generally the making of a s.91(14) order is a weapon of
last
resort in cases of repeated unreasonable application;
(f) there may be cases where there is no history of repeated
applications but the child's welfare makes the order necessary;
(g) a further check is to consider whether there is a serious
risk that the child or his primary carer will be subject to
unacceptable strain if the order is not made;
(h) the order may be made without formal application or of
the
court's own motion provided the court is considering an
application
by one of the parties for an order under the Act1;
(i) the order may be with or without time limit;
(j) the order should specify the type of application being
restrained and be no wider than necessary;
(k) without notice orders should only be made in very exceptional
circumstances.
See also:-
Re M (Section 91(14) Order) [1999] 2 FLR 553
Re C (Prohibition of Further Applications) [2002] EWCA Civ
292 -
wrong in principle, except in exceptional circumstances, to
place a
litigant in person in the position at short notice of confronting
a
s.91(14) order that barred him from dealing with any aspect
of the
case relating to his children, particularly contact.
Generally as of right from a decision of the magistrate's
court
to make or refuse to make an order - s. 94 Children Act
See Rule 4.22 FPR 1991 for the procedure for appeals either
to the
High Court under s. 94 or from any decision of a district
judge to
the judge of the court in which the decision was made.
Appeals from the county court or High Court to the Court of
appeal
(in respect of orders made after 2nd May 2000) are governed
by CPR
1998, Part 52 and PD 52
Permission to appeal, where required, must be
obtained either from
the court at which the decision is made or the Court of Appeal
(CPR,
Pr 52.3(2))
Although an application for permission to appeal may be made
to the
appeal court even if no oral application has been made to
the lower
court (CPR Pt 52 para 4.7) permission should be sought at
the end of
the hearing if it is thought that a decision may be taken
to appeal
The original court will almost always refuse permission:-
Re F (Minors) (Contact: Appeal) [1997] 1 FCR 523
The time for filing of the appellant's notice is 14 days after
the date of the decision appealed against, unless a longer
period is
ordered by the lower court (CPR 1998 Pt 52.1(3) and 52.4(2).
The appeal notice should be served within 7 days of the date
on
which it was filed (Pt 52.6 and PD 52, paras 5.2 to 5.4).
Stay, documents for the appeal, service of documents
and skeleton
arguments All covered by CPR Part 52 and PD52
(a) where permission has not been granted
(b) against the granting of permission to appeal
(c) against the granting of an extension of time for appealing
(d) from the grant or refusal of an emergency protection order
(e) from the decision of magistrates to decline jurisdiction
(f) from the decision not to interview a child in private
(g) from an order transferring or refusing to transfer proceedings,
except as provided for in the rules.
Note that appeals against interim orders are
difficult and generally
discouraged. Further, it is difficult to appeal a decision
to
refuse or grant an adjournment.
Appeals to resolve a dispute or issue of law as to which the
parties
have no real concern are likely to be regarded as an abuse
of the
process and the lawyers involved may be the subject of wasted
costs
orders
Re C (abused children: orders) [1992] 1 FCR
S -v- S (abuse of process of appeal) [1994] 2 FCR 941
Re N (Residence: Hopeless Appeals) [1995] 2 FLR 230
Where it is said that the trial judge erred in law or in the
exercise of his discretion, the proper course is to appeal.
If it is said both that an error occurred and that fresh evidence
has come to light which undermines the basis for the decision,
the
proper course is to appeal and to seek to adduce the fresh
evidence.
The appeal is technically a rehearing. However, only exceptionally
is any oral evidence allowed.
G -v- G [1985] FLR 894
The Court of Appeal will not overturn a decision because it
would
have come to a different conclusion on the evidence available
below. It must be satisfied that:
(a) the judge erred as a matter of law
(b) the judge took into account evidence which he should have
ignored, or ignored evidence which he should have taken into
account
(c) the decision is "plainly wrong"
The Court of Appeal will have in mind that there
is often no
"right"
answer in children's cases.
Note that a judge is obliged to give reasons for his decision,
particularly if rejecting expert evidence or the recommendation
of
the CAFCASS officer. Failure to do so may result in a successful
appeal
If it is not contended that the judge erred on the evidence
available to him but that important evidence has come to light,
which undermines the basis for the decision, an application
for a
rehearing should be made to the trial judge. Such an application
should be made on notice not more than 14 days after the date
of the
trial.
See CPR 1998, schedule 2
Such an application may be made where the circumstances have
materially changed since the making of the original order.
Meaning - s.3 Children Act 1989
By s.3(1) - All the rights, duties, powers, responsibilities
and
authority which by law a parent of a child has in relation
to the
child and his property .
Also by s.3(2) - the rights, powers and duties which a guardian
of
the child's estate would have had in relation to the child's
property.
By s.1(4) - the fact that a person has, or does
not have, parental
responsibility for a child shall not affect:-
(a) any obligation which he may have in relation to the child
or
(b) any rights which, in the event of the child's death, he
may
have
in relation to the child's property.
By s.1(5) A person who -
(a) does not have parental responsibility for a particular
child but
(b) has the care of the child, may (subject to the provision
of the
Act) do what is reasonable in all the circumstances for the
purpose
of safeguarding or promoting the child's welfare.
The concept of pr does not apply to a child in utero: Re F
[1988] 2
FLR 307
The mother automatically has pr on the birth of the child.
There is
therefore no provision for a mother to apply.
The mother's pr will continue unless specifically terminated
by
order of the court (such as an order freeing the child for
adoption
or on the making of an adoption order).
In the event that a mother loses pr, she may reacquire it
by
obtaining:-
(a) an order under the inherent jurisdiction revoking the
freeing
order;
(b) an order setting aside the adoption order
(c) an adoption order in respect of the child
(d) a residence order pursuant to s.8 Children Act 1989
Depends upon whether he was married to the child's mother
at the
time of the birth.
A married father acquires pr on the child's birth.
In the case of a father who was not married to the child's
mother
at
the date of the birth, see -
s.4(1) -
(a) the court may, on the application of the father1, order
that
he shall have pr for the child;
(b) the father and mother may by agreement ("a parental
responsibility agreement") provide for the father to
have pr for
the
child.
s.4(2) - the pr agreement must be in the prescribed form -
courts
have these.
s.4(3) - provides that the father's pr (whether pursuant to
an
order or an agreement) may only be brought to an end by an
order of
the court made on the application of:-
(a) any person who has pr
(b) with the leave of the court, the child himself, such leave
to
be granted only if the court is satisfied that the child has
sufficient understanding to make the application (see s. 4(4))
Note that a father's pr may not be determined whilst he has
a
residence order in respect of the child (s.4(3) and s.12(4)).
A
father's pr will come to an end if the child is freed for
adoption
or adopted or if the child's welfare requires it. Instances
include
conviction and imprisonment for sexual abuse and killing the
mother
in the presence of the children.
Parents may enter into a parental responsibility agreement
in
respect of a child in care:-
Re X (Parental Responsibility Agreement: Child in care) [2000]
1 FLR
517
The Adoption and Children Act 2002 will provide
that an unmarried
father will acquire pr if he is named as father on the child's
birth
certificate.
A person in whose favour a residence order pursuant to s.8
Children
Act is made automatically acquires pr1. A shared residence
order
is sometimes used to confer pr on a person who would not otherwise
have parental responsibility:-
G -v- F [1998] 2 FLR 700 was a case where a
child had been born to a
lesbian couple as a result of one of them being artificially
inseminated. They had jointly cared for the child but had
separated. Bracewell J. granted permission for the "absent"
partner
to apply for a shared residence order as she had played and
continued to play an important role in the life of the child.
Re D (Parental Responsibility: IVF Baby) [2001]
1 FLR 972 concerned
a man and woman who, after a relationship lasting several
years
sought IVF treatment. They presented themselves as a stable
couple
and signed the consent form, which acknowledged that the man
would
be the legal father of any resulting child. The treatment,
using
sperm from an anonymous donor, was unsuccessful. The couple
separated and the woman, who had commenced a new relationship,
resumed treatment, without informing the clinic of her change
of
partner. Treatment, using anonymous donor sperm, resulted
in a live
birth. The original partner, who had signed the consent forms,
applied for parental responsibility and contact, relying on
his
status, under the Human Fertilisation and Embryology Act 1990,
s.28
(3)2.
The judge assumed jurisdiction on the basis that the parties
agreed
that the man should be treated as the father. He ruled in
favour of
indirect contact, indicating that it would probably not be
appropriate to make a direct contact order until the child
was about
three years old. The application for parental responsibility
was
adjourned generally on terms that any application by the mother
to
adopt the child would reinstate it. The applicant "father"
appealed
on the basis that he should be granted pr (and direct contact)
immediately. He was refused permission. In relation to pr,
the
Court of Appeal said that, applying the ordinary tests in
relation
to parental responsibility, this was a father who had demonstrated
potential commitment and had genuine motives, but who had
not had an
opportunity to know the child. It was proper, in the circumstances
to defer his application to see if commitment was maintained.
Further, the judge had taken steps to prevent the mother from
making
applications which might adversely affect the father's position.
Once pr is acquired, it continues unless specifically terminated3.
The court will consider:-
(a) the degree of commitment shown by the father to the child
(b) the degree of attachment between the father and the child
(c) the reasons why the father is making the application
(d) all the relevant circumstances.
The court will also apply the welfare checklist
in s1.3 of the Act
See:-
Re RH (Parental responsibility) [1998] 1 FLR 855
Re S (Parental responsibility) [1995] 2 FLR 648
Use of pr -
Must not be unilateral. For example, a person with pr must
not
decide to change a child's school without consulting any other
person with pr1.
A parent must not change a child's surname without the consent
of
the other parent or the leave of the court2.
1. Types of order available
s.8(1) Children Act 1989 provides that there are four different
orders available:-
(a) "a contact order" - an order requiring
the person
with whom a
child lives or is to live, to allow the child to visit or
stay with
the person named in the order, or for that person and the
child
otherwise to have contact with each other;
(b) "a prohibited steps order" - an order that no
step
which could
be taken by a parent in meeting his parental responsibility
for a
child, and which is of a kind specified in the order, shall
be taken
by any person without the consent of the court;
(c) "a residence order" - an order settling the
arrangements to be
made as to the person with whom a child is to live; and
(d) "a specific issue order" - means an order giving
directions 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.
2. Who may apply?
An application may be made either as of right or with the
leave of
the court. A section 8 order may also be made of the court's
own
motion. See s.10(1) for the court's power to make s.8 orders.
s.10(4) provides that a parent or guardian of the child and
any
person in whose favour a residence order is in force has the
right
to apply for a Section 8 order.
s.10(5) adds to the category of those entitled to apply:-
(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 residence order 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; or
(iii) in any other case, has the consent of each of those
(if any)
who have parental responsibility for he child.
s. 10(6) provides that a person who would not
otherwise be entitled
under sub-sections (4) or (5) to apply, may apply for the
variation
or discharge of a Section 8 order if -
(a) the order was made on his application; or
(b) in the case of a contact order, he is named in the order.
Others may apply with leave:-
Persons other than the child concerned (including a child
applicant
who is not the child who is to be the subject of the order):-
s. 10(8) provides that, where the person applying for leave
to make
a section 8 application is not the child concerned, the court
shall,
in deciding whether or not to grant leave, have particular
regard
to -
(a) the nature of the proposed application for the section
8 order;
(b) the applicant's connection with the child;
(c) any risk there might be of that proposed application disrupting
the child's life
(d) to such an extent that he would be harmed by it; and
(e) where the child is being looked after by a local authority
-
(i) the authority's plan's for the child's future;
(ii) the wishes and feelings of the child's parents.
Note that applications for contact orders in
respect of children who
have been adopted will be subject to special considerations:-
Re E (Adopted Child: Contact:Leave) [1995] 1 FLR 57
Re S (Contact Application:Sibling) [1998] 2FLR897
Re A (Residence orders; Leave to Apply) [1992] Fam 182; [1992]
3 All
ER 872
Re M (Grandmother's application for leave)[1995] 2 FLR 86
Re W (Contact Application: Procedure) [2000] 1 FLR 263
Especially: Re J (Leave to issue application for residence
order)
[2003] 1 FLR 114
s10(8) provides that, before granting permission, the court
must be
satisfied that the child has sufficient understanding to make
the
proposed application. The child must be considered to be able
to
understand the issues in the proceedings and give instructions
-
sometimes known as "Gillick competent".
The person who has to make the initial judgment is usually
the
solicitor whom the child wishes to instruct. The view of an
experienced solicitor, who is a member of the Children's panel,
will
carry considerable weight. However, the fact that a child
has
sufficient understanding does not always mean that the application
will be granted; the court has a discretion.
Note that the criteria under s.10(9) do not apply to an application
by the child himself.
Although there has been some variance in the authorities,
it seems
that the child's welfare is paramount in reaching a decision.
Authorities:-
Gillick -v- West Norfolk & Wisbech Area Health Authority
[1986] AC
112
Re A (A minor) (Residence Application: leave to apply) [1993]
1 FLR
425
Re H (Residence: Child's Application for Leave) [2000]1 FLR
780.
Consideration may have to be given for the representation
of a child
by a guardian:-
A -v- A (Contact: Representation of Child's Interests) [2001]
1
FLR
715
General principles in determining s. 8 applications
- s.11 -
(a) Timetabling. s. 11(1) The court shall:-
(a) draw up a timetable with a view to determining the question
without delay and
(b) give such directions as it considers appropriate for the
purpose of ensuring, so far as is reasonably practicable,
that the
timetable is adhered to.
(b) Provisions to prevent delay. s.1(2) - Rules
of the court
may -
(a) specify periods within which specified steps must be taken;
(b) make other provision for the purpose of ensuring, so far
as is
reasonably practicable, that such questions are determined
without
delay.
(c) "Interim" orders1. s.11(3) - Where the court
has
power to
make a s.8 order, it may do so at any time during the proceedings,
even though it is not in a position to finally dispose of
the
proceedings
(d) Joint/shared residence. S.11(4) - the court may specify
the
periods during which the child is to live in the different
households concerned.
(e) Resumption of cohabitation - s.11(5 ) and 11(6) -
A residence (11(5)) and a contact order (s.11(6)) cease to
have
effect if the parents live together for a continuous period
of six
months.
(f) Directions and conditions - s. 11(7) -
A section 8 order may contain directions as to how it is to
be
carried into effect. Further, it may impose conditions, which
must
be complied with by the person in whose favour the order was
made, a
parent, a person with pr who is not a parent or a person with
whom
the child is living.
Restrictions on making s.8 orders
A s.8 order should not:-
(a) be made in respect of a child who is 16 or over
(b) be expressed to continue beyond the child's sixteenth
birthday
(except in exceptional circumstances);
(c) be made where a care order is in place or to be made (not
so
with a supervision order).
(d) be made in favour of a local authority.
Use of Child and Family Court Reporter and Reports
under s.7 and s.37
Under s.7, a Cafcass officer is generally directed to investigate
and report to the court on issues of residence and contact
and in
difficult applications for specific issue orders or prohibited
steps
orders (such as change of name, permanent removal from the
jurisdiction).
The Cafcass officer should see the child with each parent
in that
parent's environment.
The report may contain hearsay evidence but, if so, the source
of
the evidence must be clearly spelt out. The report often annexes
a
school report on each child.
The commissioning of a welfare report usually involves a delay
of
about 16 weeks. The court will consider the impact of any
delay and
may proceed without a report.
Although the report should always be taken into account, the
ultimate decision as to what should happen in the case rests
with
the judge, who may reject the recommendation in the report.
A judge
should give reasons for so doing:-
S -v- Oxfordshire County Council [1993] 1 FLR 452
Re W (Residence) [1999] 2 FLR 390
s.7 also provides that the court may ask a local
authority to
prepare the report.
s.37 if the court considers that a care or supervision order
may be
necessary, it may direct that a report under s.37 be prepared
by a
local authority.
In the Principal Registry of the Family Division, applications
for
residence and contact must be referred for conciliation.
Applications for specific issue and prohibited steps orders
may be
referred for conciliation at the request of the applicant.
Conciliation takes place before a district judge with a Cafcass
officer present. The parties have an opportunity to attempt
to
reach an agreement with the help of the Cafcass officer. A
consent
order may be made if agreement is reached.
In other courts, there is often access to conciliation facilities
and the court should consider whether conciliation would be
an
appropriate course.
Because the case may (or will) be referred for conciliation,
no
statements should be filed until the court has made the appropriate
direction.
Approach - there is a strong presumption in favour of contact.
The court will make a contact order in favour of the "absent"
parent
unless it is demonstrated that to do so would be contrary
to the
child's welfare:-
Re H (Minors: Access) [1992] 1 FLR 148
All applications are subject to the welfare principle and
the
welfare checklist.
The court has to consider the reasons for the hostility and
how it
should be dealt with. One issue is whether the hostility
is "implacable":-
Re D (Contact: Reasons for Refusal) [1997] 2 FLR 48
In Re P (Contact: Discretion) [1998] 2 FLR 696 Wilson J. outlined
three ways in which hostility to contact might arise and how
it
should be dealt with:-
(a) where there are no rational grounds - the court should
only
refuse contact where there is a risk of emotional harm to
the child
(b) where the grounds are insufficient to displace the presumption
in favour of contact - contact should be ordered.
(c) where the arguments are rational but not decisive
But see below - it is now recognised that a mother's
hostility to
contact may arise because of violence by the father. See below
for
approach in such circumstances.
See also:-
Re D (Contact: Mother's hostility) [1993] 2 FLR 1
Re C & V (Contact: Parental Responsibility) [1998] 1 FLR
392
Re P (Minors) (Contact: Discretion) [1998] 2 LFLR 696
Re K (Residence Order: securing contact) [1999] 1 FLR 583
Re K (Contact) (Mother's Anxiety) [1999] 2 FLR 703
A -v- N (Committal: Refusal of Contact) [1997] 1 FLR 533
Where there are allegations of domestic violence, the court
must
look at the conduct of each party towards the other and towards
the
children, the effect of the violence on both the resident
parent and
the children and the motivation of the party seeking contact.
Where there are allegations of serious domestic violence,
the court
is most unlikely to make an interim order for direct contact.
The
allegations will need to be investigated first and findings
made.
There is no presumption that findings of domestic violence
against
the applicant parent will result in no contact. The court
will
assess the violence in the context of s.1(3) and weigh the
risks
involved and the impact of contact on the resident parent
and the
child against the positive factors, if any, of contact. The
court
will have regard in particular to whether the offending parent
recognises his past conduct and his willingness and ability
to
change. See:-
Re S (Violent Parent: Indirect Contact) [2000] 1 FLR 481
Re L, V, M, H (Contact: Domestic Violence) [2000] 2 FLR 3341
Re M (Interim Contact: Domestic Violence) [2000] 2 FLR 377
Re L (Contact: Genuine Fear) [2002] 1 FLR 621
Re G (Domestic Violence: Direct contact) [2000] 2 FLR 865
Re J-S (Contact: Parental Responsibility) [2002] EWCA Civ
1028
There may be other circumstances in which it
is appropriate for
contact to be terminated. See, for example:-
Re H (Contact Order) (No. 2) [2002] 1 FLR
However, this is a discretion which should be exercised carefully:-
Re J-S (A Child) (Contact: Parental Responsibility) [2002]
3 FCR 433
CA
It is good practice for the order for contact to direct the
resident
parent to "make the child/children available for contact"
as
defined
in the order. This is particularly important when it is felt
that
the resident parent may be resistant to contact.
Sanctions for refusal of contact without good
reason
A penal notice may be attached to an order for contact. Make
sure
the order is in the above form. If it is not, amend it.
Where the hostility of the resident parent to contact frustrates
the
order, the court may consider a transfer of residence or committal
to prison. Many judges are most reluctant to commit, particularly
if the non-resident parent is not in a position to care for
the
child and it is a weapon of last resort:-
Re B (Contact) [1998]1 FLR 368
A & N (Committal: Refusal of Contact) [1997] 1 FLR 533
Re M (Contact Order: committal) [1999] 1 FLR 533
Note that conditions may be attached to contact
orders:
Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124
Re M (Contact: Restrictive Order: Supervision) [1998] 1 FLR
721
Special precautions may also be taken by the
court when permitting
contact abroad in circumstances where there is risk that the
child
may not be returned:-
Re T (Staying Contact in Non-Convention Country) [1999] 1
FLR 262
Re A (Security for Return to Jurisdiction) (Note) [1999] 2
FLR 1
Re P (A child: Mirror Orders) [2000] 1 FLR 435
Direct with whom a child is to live.
The general principles for the Children Act and for the making
of
s.8 orders apply.
See above re method of application and applications not on
notice.
The court may make a residence order of its own motion. The
order
cannot be made in favour of the child himself.
Arrangements whereby a child spends part of his time living
with one
parent and part with the other.
Until recently these were seldom made and required special
circumstances making a shared residence order desirable in
the
interests of the child. However, there is recent Court of
Appeal
authority to the effect that neither exceptional circumstances
nor,
probably, evidence of a positive benefit to the child is
required. It need only be demonstrated that the order is in
the
interest of the child in accordance with the requirements
of Section
1 Children Act 1989:-
D -v- D [2001] 1 FLR 495
One example is where it to confer parental responsibility
on a non-
parent with whom the child lives part of the time.
Shared care arrangements are most often arrived at by agreement,
in
which case the "no order" principle may well apply.
See also:-
A -v- A (minors) [1994] 1 FLR 669
Re H (shared residence: parental responsibility) [1995] 2
FLR 883
G -v- F (Contact and Shared Residence: applications for leave)
[1998] 2 FLR 799
Enforcement of residence orders
See s. 14
The prohibited steps order is an order empowering the court
to
restrain a person from an exercise of parental responsibility.
This
may relate to such issues as education (not to withdraw a
child from
a particular school, not to go to the child's school etc)
and
medical care (other than emergency treatment) or, for example,
to
restrain a threatened removal of the child from the jurisdiction.
Note that a person with a residence order in respect of a
child may,
without the permission of the court or the other party, remove
the
child from the jurisdiction for a period of less that one
month.
A prohibited steps order may be made prohibiting a non-parent
from
contacting children.1
Note that no court may make a prohibited steps order in any
way
which is denied to the High Court (by s.100(2)) in the exercise
of
its inherent jurisdiction. Similarly, no order will be made
with a
view to achieving a result which could be achieved by making
a
residence or contact order (s.9(5))
An application for a specific issue order is made in order
that the
court may decide a specific issue relating to the child.
The order may be made in conjunction with a residence or contact
order or on its own.
The application may be made not on notice in an appropriate
case.
Examples are issues about religious upbringing, circumcision,
schooling, the surname by which the child is known and applications
to remove a child from the jurisdiction (whether temporarily
or
permanently).
s. 13 regulates change of name and removal from
the jurisdiction.
It is an automatic condition of a residence order that no
person
will cause the child to be known by another surname or remove
him
from the jurisdiction (save under the automatic leave), without
either the written consent of every person who has pr or the
leave
of the court.
Change of surname
See:-
Dawson -v- Wearmouth [1999[ AC 308
Re C (Change of Surname) [1999] 2 FLR 656
The welfare of the child is the paramount consideration.
Prima facie, the application should be granted if there is
a
sensible plan to visit relatives or enjoy a holiday. Reasons
for
refusal may be grounds for believing the parent may not return
or,
for example, the child being too young to undertake the journey.
Undertakings to return the child to the jurisdiction at the
end of
the holiday and, even, deposits of money may be required as
a
condition for the granting of leave.
Permanent removal from the jurisdiction
There is no difficulty if parents agree. A parent may remove
a
child permanently from the jurisdiction with the consent of
all
others who have pr.
It is a criminal offence to remove a child from the jurisdiction
without the appropriate consents or leave.1
The court has said that applications for permanent removal
require "profound investigation and judgment".
The issue is whether the plan is a reasonable and sensible
one and,
is it compatible with the welfare of the child, taking into
account
the impact upon contact with the other parent.
See:-
Re H (Application to remove from jurisdiction) [1999] 1 FLR
848
Re A (Permission to remove from jurisdiction: Human Rights)
[2000] 2
FLR 225
Re C (leave to remove from the jurisdiction) [2000] 2 FLR
457
Each case is to be decided on its own facts:-
Payne -v- Payne [2001] 1 FCR 425
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