This is an 83 page document containing all materials used throughout the year. The notes are broken down into condensed tables (suitable for the exam), Texbook notes, lecture notes, Multiple Choice Questions and Answers, and tasks completed in Workshops during the year.
Types of orders Child Arrangements Order
Prohibited Steps Order
Specific Issue Order
Each order will determine a particular matter relating to the child’s upbringing and will
last until they reach the age of 16 (or 18 in exceptional circumstances) – s. 91(10) CA
1989
All s.8 orders can contain conditions, directions, activities and monitoring which
are appropriate to the specific circumstances of each family (see p.199 text book).
Regulates:
(a) with whom the child will live, spend time or otherwise have contact with
(residence)
(b) when a child is to live, spend time or otherwise have contact with any person
Child (contact)
Arrangements
Order (CAO) An order can authorise physical contact but also contact by other methods (letter/email
etc)
The amount of time can be specified or left flexible (reasonable contact =
arrangements made by parents. This is preferable.)
Can be made in favour of non-parents as well as parents. If made in favour of a non-
parent, they will automatically have parental responsibility but only for as long as the
child arrangements order is in place - s. 12(2) CA 1989
Can contain conditions and directions (e.g. to build up contact gradually or ensure
supervised contact).
Two aspects of parental responsibility (PR) are affected when a CAO is made:
Change of child’s surname (see Workshop 6 notes)
Leaving the UK (see Workshop 9 notes)
In cases of DV, the court considers the following before making a CAO:
1. The past and present conduct of both parties
2. The effect of the violence on the child and the residential parent
3. The motivation of the parent seeking contact
4. In cases of serious DV, the ability of the offending parent to recognise his past
conduct, be aware of the need to change and to make genuine efforts to do so.
No step can be taken by a parent in relation to their parental responsibilities for
the child of the kind specified in an order without the consent of the court – e.g.
Prohibited Steps prohibit the removal of a child from the UK or prohibit a change of surname
Order Cannot overlap with a CAO
The court cannot make a prohibited steps order to achieve a result that could
be achieved by making a CAO – s. 9(5) CA 1989
Can only be used in matters relating to parental responsibility
Determines a specific question that has arisen in relation to any aspect of
parental responsibility for the child where there is a disagreement than cannot
Specific Issue be resolved
Order Can be used by non-parents – e.g. local authority, a doctor or a relative - to
resolve issues regarding the child (e.g. abortion, medical treatment)
The court cannot make a specific issue order to achieve a result that could be
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, achieved by making a CAO – s. 9(5) CA 1989
Factors the court will consider when making a s. 8 Order
Welfare The welfare of the child will be the court’s paramount consideration in the making of
principle any order regarding them
s. 1 (1) CA 1989
The minimum factors that are to be considered by the court in every case – the court
can assess the relevant importance of each of the factors in the circumstances of the
case
The ascertainable wishes and feelings of the child
Important to allow the child’s wishes to be given a place in deciding what is in
his/her welfare
Age will have an effect on the importance a court will attach to a child’s wishes
A child’s wishes do not always take precedence and the court may feel that the
child’s wishes are not in accordance with their best interests – Re DW (a
Minor)
Child’s wishes and feelings can be made known through a welfare report
prepared by CAFCASS or a judge may interview the child privately during
proceedings. In some cases a child may need separate representation
The child’s physical, emotional and educational needs
Welfare
checklist Will look at accommodation, medical needs, education, how close a child is to
any siblings and others with whom the child may lose touch if an order is made
s.1(3) CA 1989 The court will not equate welfare with material advantages (i.e. one parent
wealthier and can offer more than the other parent)
It is unusual for siblings to be separated especially when they are close in age
The likely effect on the child of any change in circumstances
If current arrangements are working for the child, the court will be unlikely to
change them
‘Continuity of care is a most important part of a child’s sense of security and
that disruption of established bonds is to be avoided whenever it is possible to
do so’ – Allington v Allington
The child’s age, sex, background and any relevant characteristics of the child
Younger children may tend to need to live with their mothers due to their
dependency but older children may cope with living with either parent
No presumption of law that a child of any age should be with one parent or the
other – Re W (A minor)
The sex of the child may also be taken into account – merely one consideration
Background can cover race, culture and religion – the court will look at how the
child has been brought up and the influence of each culture – Re P(A Minor)
Any harm that the child has suffered or is at risk of suffering
Covers any past or future harm
Covers both physical and psychological harm
Will consider the harm that will be suffered by a child not seeing both parents –
‘contact is the right of the child, not of the parent’ – Re S (Minors: Access)
How capable of meeting the child’s needs is each of the parents (and any other
person the court considers the question relevant)
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, The parents/proposed carers will be assess their ability to care for the child –
the parents conduct will be relevant (e.g. criminal record for violence or
dishonesty)
A parent’s lifestyle and sexual orientation may be relevant if may cause
bullying at school
A parent’s mental or physical illness may also be considered if it means they
are not a suitable long-time carer
A parent’s religion will also have an influence if it may affect the child’s health
and development
Where a person is proposing to share care with someone else, the court will
also assess their abilities
The range of powers available to the court
The court has the power to make any order in favour of any person,
irrespective of who has applied and for what
May order CAO in favour of grandparents instead of parents or direct the LA to
consider a care/supervision order (see Workshop 7 notes)
There is a presumption that the involvement of each/both parent(s) in the child’s life
benefits the child
Re C (a Child) – confirmed in Re Q (a Child) – summarises the position:
Contact between parent and child is a fundamental element of family life and is
Involvement of almost always in the interests of the child
each/both Contact is to be terminated only in exceptional circumstances with cogent
parent(s) reasons/ if detrimental to the child’s welfare
Positive obligation on the state to promote contact
s.1(2A) CA 1989 Court should take a medium-term and long-term view
Court must consider if has taken all necessary steps to facilitate contact as can
reasonably be demanded in the circumstances of the case
s. 1(6)(a) CA 1973 – unless there is evidence before the court that the involvement of
the parent in the child’s life would put the child at risk of suffering harm, whatever the
involvement
No delay Delay for no reason should be avoided as this can be detrimental to the welfare of the
principle child
s. 1(2) CA 1989
No order Unless there is a positive need and benefit to the child in the court making an order,
presumption there is a presumption that the court will not intervene and will make NO order –
rebuttable presumption
s. 1(5) CA 1989
Court is likely to consider that an order is necessary where there is a risk that one
parent may abduct the child from the UK
Procedure for a contested s. 8 application in the Family Court
s. 10 Children and Families Act 2010 – since 22nd April 2014, it is compulsory to attend
a Mediation Information and Assessment Meeting (MIAM) before issuing proceedings
for a s.8 order or financial orders UNLESS an exception applies
Exceptions – set out in FPR 2010, r 3.8
o Domestic violence
o Where urgency is at stake
o A party has been declared bankrupt
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, MIAM o Previous MIAM attendance within last 4 months
o Insufficient contact details available for a respondent
o A party’s disability cannot be accommodated
o One party is in prison, on bail/licence conditions which prevent them contacting
another party
o A party is a child
o A party is not habitually resident in England and Wales
o There is no MIAM service within 15 miles of the parties’ home or no
appointment for 15 working days
Permission of the court for a CAO is not required for:
(a) Step-parent/civil partner who has treated the child as a child of the family
(b) Any person with whom the child has lived for 3 out of last 5 years
(c) Any person who has obtained consent of all those whose legal position would
be affected (i.e. PR)
(d) Any person who has been awarded PR by the court’s discretion
Permission of the court for ANY s. 8 order is not required for:
(a) Parent
(b) Step-parent
(c) Guardian/ special guardian
(d) A person named in a CAO (residence)
All others need permission
Permission A child can apply on their own behalf but permission is needed
Even if a child obtains a CAO enabling them to live apart from his parents, they
will still retain parental responsibility
The child must:
o Obtain a solicitor to act for them – either by a litigation friend or on their
own (if they have sufficient understanding to give instructions - FPR
2010, r. 16.6)
o Obtain public funding (Legal Aid)
o Obtain the court’s permission (only will be given if the court is satisfied
that the child has sufficient understanding)
o Be able to show that the merits of the case justify the order sought
FOR APPLICATION CHECKLIST, SEE NEXT PAGE.
Application –
checklist for the
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