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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

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.

Definitions - See Section 105

Procedure for applying for orders under the Children Act:-
See the Family Proceedings Rules 1991 (only a brief summary is given
Rule 4.3 - Application for leave to commence proceedings
Note that a child's application for leave should be made in the
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
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
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

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
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
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.

Practice, Practice Directions etc.
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
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
where a Guardian has (unusually) been appointed in private law
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
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
Re X (Non-Accidental Injury: Expert Evidence) [2001] 2 FLR 90

Which court/level of judiciary?
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
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
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.

Transfer back to the FPC
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.

Some authorities on transfer
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

Discretion as to conduct of proceedings
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

s. 91(14) orders
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
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
paramount consideration. He said:-
"The judge must, therefore ask him or herself in every case
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

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.
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
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
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.

Appeals in children cases.
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

Time limits
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

There is no appeal -
(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
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.
Test on an appeal:-
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
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

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
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
the child's estate would have had in relation to the child's

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
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.

Position of mother
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
(a) an order under the inherent jurisdiction revoking the freeing
(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

Position of the father
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
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
s.4(2) - the pr agreement must be in the prescribed form -
have these.

s.4(3) - provides that the father's pr (whether pursuant to
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
or adopted or if the child's welfare requires it. Instances
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

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

Position of others -
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"
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
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"
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.

Determination of pr applications
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
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.

Applications without leave
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.

Applications with leave
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

Authorities -
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

The child as applicant -
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,
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.
Gillick -v- West Norfolk & Wisbech Area Health Authority [1986] AC
Re A (A minor) (Residence Application: leave to apply) [1993] 1 FLR
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

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
(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
(d) Joint/shared residence. S.11(4) - the court may specify
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
(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
(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
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

Approach - there is a strong presumption in favour of contact.
The court will make a contact order in favour of the "absent"
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.

Hostility to contact
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

Contact and domestic violence
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

Form of the contact order
It is good practice for the order for contact to direct the resident
parent to "make the child/children available for contact" as
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.

Shared residence/joint residence
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

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
Dawson -v- Wearmouth [1999[ AC 308
Re C (Change of Surname) [1999] 2 FLR 656

Temporary removal from the jurisdiction
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.
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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