Lecture notes
Family Law and Practice WS13 D1
- Module
- Family Law
- Institution
- City University (City)
Family Law and Practice WS13 D1
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LEGAL PRACTICE COURSEFamily Law
Workshop 13
Topic(s):
The Children Act 1989
Parental responsibility orders in Family proceedings
Section 8 orders
Learning Outcomes:
By the end of this session you will be able to:
Apply the principles of The Children Act 1989;
Explain the concept of parental responsibility; and
Answer clients' questions about rights and responsibilities for children.
Session Activities:
Discussion to review principles of The Children Act and the statutory checklist
Consideration of case file including legal aid funding
Materials Attached:
Task 1 - questions on the Welfare Checklist
Task 2 - case study of Scott Barber
Documents to Be Released:
Answer to Task 2/Scott Barber (d2)
Preparation for Session:
Review chapters 7 and 13 CLP Family Law and Practice
Prepare answers to Task 1 and read the case study of Scott Barber (Task 2)
Post-Session:
Review your notes from this session and ensure you understand how the principles have
been applied to the fact patterns
docs_971484503.docx 1/18 © City, University of London 2019
, Private law – matter between a child and a parent.
PR – s4
S.8 order
Residence – where the child should live on a permanent basis.
Contact – where they should have contact with the other parent
Prohibited steps order – similar to injunction. It stops a parent from carrying out their
wishes.
Specific issue order – where both parents can’t agree on a matter and then the court will
decide what the outcome should be. So the parents have specific issue they can’t decide
on which the court will decide for the parents.
What are the general principles to be applied for a Section 8 Order?
• Welfare of child is paramount
o The best interests of the child taking into consideration all circumstances of the case
o The welfare of the child will override all other considerations
The best interests of the child taking into consideration all circumstances of the case.
Welfare of a child is the first principle to be applied. Courts will be concerned with making
sure that the welfare of the child is paramount think about what’s in the best interest of the
child. They have to take into account all the circumstances of the case so – objective view.
The welfare of the child will override all other considerations. So the judge will not be
concerned with what the mother or father is saying. Because they may have their own
agenda. The court is concerned about what’s best for the child considering all the
circumstances of the case. More holistic approach is taken
• No delay principle – s1
Must act promptly during proceedings
Solicitor Must act promptly during proceedings. If there is a delay it means that the
child is unsettled and they may not see the other parent. That can be harmful for the child.
So the solicitor must act quickly as possible. Court is under obligation to deal with matters
relating to the children as quickly as possible.
• No order principle/status quo
If the current state of affairs are working well – the court will not interfere
If the current state of affairs are working well – the court will not interfere. So if the
current living arrangement and contact orders are working well then the court will not
interfere as they don’t want to disrupt the child. So the court will not make an order. In other
words, if an order is being requested by a father the judge will only make the order if it
benefits the child
• The Welfare checklist – Section 1(3)
o Mandatory application – only applies to Section 8 court orders
o The court shall have regard to various matters when deciding whether to make an
order
Mandatory application – only applies to Section 8 court orders
The court shall have regard to various matters when deciding whether to make
an order
It doesn’t apply to PR.
© City, University of London 2019 2/18 docs_971484503.docx
, LEGAL PRACTICE COURSE
S8 deals with orders relating to where a child should live with on a permanent basis so
residence and whether a child should have a contact with a parent – contact order.
The welfare checklist (factors)
• Ascertainable wishes and feelings of C in light of age and understanding. So wishes and
feelings of the child will be taken into account provided they are old enough to
understand
• Physical emotional and educational needs. So where will the child be living, emotionally
will they be stable. And educational needs if appropriate.
• Likely effect of change in circumstances. So the court doesn’t want to change things
unless its better for the child. So the likely effect of change will be taken into account.
The general principle is that the court doesn’t want to change matters for the child ie
where they should live, contact etc unless its better for them
• Child’s age, sex, background and any other relevant characteristics. So certain
presumptions are made. E.g teenage girls are better off if they stay with their mother.
Teenage boys should stay with their father or have contact with the father.
• Any harm C has suffered/is at risk of suffering. So contact is a fundamental right. Not
having contact can be harmful. Contact can be direct/indirect such as face time, emails,
letters etc. contact can be supervised ie by a family member or a social worker. Harm
can also include physical/ mental harm.
• How capable parents are of meeting C’s needs. This is what no parents would want to be
assessed on. Capability of parents is looking at which parent is better to look after the
child meeting their needs. Disability of a parent can come into play. If parents are
working then it can go against them.
• Range of powers available to court – court will decide what’s best for the child. Just
because a father is asking for a contact doesn’t mean that the father will have unlimited
contact. The court might decide on indirect contact or supervised contact. So the court
will decide what order is the best order. Court don’t have to make any order at all.
APPLY FULLY WHEN ANSWERING and apply facts when dealing with the welfare checklist
Applies to Section 8 Orders NOT Parental Responsibility
docs_971484503.docx 3/18 © City, University of London 2017
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