AN INTRODUCTION TO FAMILY LAW

Chapter 3 - CHILDREN - PRIVATE LAW

Parental Responsibility

Definition

The Children Act defines [1] parental responsibility as "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". There is no 'official' or comprehensive list of 'parental responsibilities', but the following are generally accepted as being included:

Duty to maintain - a duty that carries on, of course, even when the child no longer resides with that parent, irrespective of the other parent's circumstances.

Education - including choice of schools, although in the state system many parents find that there is no such thing as 'parental choice', as the child will usually go to the nearest appropriate school.

Religious upbringing - obviously, only usually an issue when the parents do not share the same religious faith.

Medical treatment - although where emergency treatment is required, it is submitted that most parents would not expect this to be withheld until the other parent is consulted.

Choice of surname - can only be changed with the agreement of the other parent or by a court order, where the other parent has parental responsibility.

Removal from the jurisdiction - again, agreement of other parent with parental responsibility required, or court order.

Consent to adoption - a child can only be adopted with the consent of any parent having parental responsibility, or if the court dispenses with that consent.

When two parents both having parental responsibility cannot agree upon a particular issue relating to their child, either may make an application to a court for a specific issue order.

Acquisition of Parental Responsibility

Where the parents are married, both automatically acquire it. Where they are not married, only the mother automatically acquires it. The father can acquire it by being registered as the father on the child's birth certificate (since 1st December 2003), with the mother's agreement, or by obtaining a parental responsibility order [2] . Such an order will be made in most cases.

Where a court makes a residence order in favour of any person who is not the parent or guardian of the child concerned that person shall have parental responsibility for the child while the residence order remains in force.[3]

A step-parent may acquire parental responsibility either by entering into a parental responsibility agreement or by court order.[4]

A person appointed as a child's guardian under this section will have parental responsibility for the child concerned.[5]

An adoption order gives parental responsibility for a child to the adopters or adopter.[6]

[1] Children Act 1989, s.3 .
[2] Children Act 1989, s.4(1) .
[3] Children Act 1989, s.12(3).
[4] Children Act 1989, s.4A(1).
[5] Children Act 1989, s.5(6).
[6] Adoption and Children Act 2002, s.46(1).

S.8 Orders

Section 8 Children Act 1989 sets out the four main orders available to the court in private law children proceedings:

“a residence order ” means an order settling the arrangements to be made as to the person with whom a child is to live;

“a contact order ” means 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;

“a prohibited steps order ” means 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; and

“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.

Each of these will now be dealt with in turn:

Residence Order

The first point to note about residence orders is that, unlike the pre-Children Act 'custody, care and control' orders, they merely determine with whom the child is to live and do not give the 'resident' parent any rights in respect of the child over and above the 'non-resident' parent, i.e. they have no bearing upon the parental responsibility of either parent, although the parent looking after the child may make 'day to day' decisions relating to the child that have to be taken while the child is in their care[5]. However, if a residence order is made in favour of a father who would not otherwise have parental responsibility for the child then the court shall also make a parental responsibility order in his favour.[1] Further, where the court makes a residence order in favour of any person who is not the parent or guardian of the child concerned that person shall have parental responsibility (subject to restrictions) for the child while the residence order remains in force.[2] (A guardian will already have parental responsibility.[3])

Residence orders may be made in favour of more than one person and, where those persons do not live together, the order may specify the periods during which the child is to live in the different households concerned.[4] There is no requirement that the child should spend equal amounts of time with each parent, although where the child is living with one parent and is either not seeing the other parent or the amount of time to be spent with the other parent is limited or undecided, there cannot be a shared residence order.[5] A shared residence order may be made to reflect the realities of the parents' involvement[6], and there is no requirement that the parents be on good terms with one another.[7]

Where a residence order is in force with respect to a child, no person may cause the child to be known by a new surname without either the written consent of every person who has parental responsibility for the child or the leave of the court.[8] A person seeking leave should apply for a specific issue order.

Further, where a residence order is in force with respect to a child, no person may remove the child from the United Kingdom without either the written consent of every person who has parental responsibility for the child or the leave of the court.[8] However, this does not prevent the removal of a child, for a period of less than one month, by the person in whose favour the residence order is made.[9]

Unless discharged by the court, a residence order will normally last until the child reaches the age of sixteen, although where there are exceptional circumstances the court may make an order that will last until the child reaches the age of eighteen.[10] Where a residence order is made in favour of any person who is not the parent or guardian of the child concerned, that person may request the court to include in the order a direction that the order continue in force until the child reaches the age of eighteen.[11] Where a residence order is made in favour of parents who each have parental responsibility for him, the residence order will cease to have effect if the parents live together for a continuous period of more than six months.[12]

Contact Order

A contact order may provide for undefined contact (usually referred to as 'reasonable contact', i.e. leaving it to the parents to agree contact arrangements) or, more commonly, for defined contact, setting out when and where the contact will take place. The order may provide for 'visiting' (i.e. daytime) contact or for 'staying' (overnight) contact. It may also provide for indirect contact, such as via telephone, birthday card, letter, email or messaging.[13]

There is no statutory presumption in favour of contact, but the courts have held that contact should be allowed unless the are cogent reasons for refusing it[14], such as the risk of serious harm to the child.

There is also no presumption against contact where there has been domestic violence by the parent seeking contact against the parent with care - the court has to "balance the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors, (if any), of contact between the parent found to have been violent and the child".[15]

Where the court is considering whether to make, vary or discharge a contact order, it may make a 'contact activity direction' in connection with the order. A contact activity direction is a direction "requiring an individual who is a party to the proceedings to take part in an activity that promotes contact with the child concerned". The activities that may be so required include, in particular:

(a) programmes, classes and counselling or guidance sessions of a kind that—

(i) may assist a person as regards establishing, maintaining or improving contact with a child;

(ii) may, by addressing a person's violent behaviour, enable or facilitate contact with a child; or

(b) sessions in which information or advice is given as regards making or operating arrangements for contact with a child, including making arrangements by means of mediation.[16]

When making or varying a contact order, the court can also impose a 'contact activity condition' requiring a parent "to take part in an activity that promotes contact with the child concerned".[17] 'Contact activity condition' is not defined, but could include attendance at a contact centre.

As with residence orders, contact orders will, unless discharged by the court, normally last until the child reaches the age of sixteen, although where there are exceptional circumstances the court may make an order that will last until the child reaches the age of eighteen.[10] A contact order which requires the parent with whom a child lives to allow the child to visit, or otherwise have contact with, his other parent shall cease to have effect if the parents live together for a continuous period of more than six months.[18]

Prohibited Steps Order

Examples of the use of prohibited steps orders include prevention of the removal of the child from the jurisdiction, restricting the child's contact with a third party and preventing a parent from publicising aspects of the child's life[19]. Prohibited steps orders may be made against any person, even if they are not a party to the proceedings.[20]

The court may not use its powers to make a prohibited steps order with a view to achieving a result which could be achieved by making a residence or contact order.[21]

As with the other s.8 orders, a prohibited steps order will, unless discharged by the court, normally last until the child reaches the age of sixteen, although where there are exceptional circumstances the court may make an order that will last until the child reaches the age of eighteen.[10]

Specific Issue Order

Examples of the use of specific issue orders include dealing with disputes between the parents over a child's education[22], religious upbringing[23], medical treatment[24] and the change of the child's name[25].

As with prohibited steps orders, the court may not use its powers to make a specific issue order with a view to achieving a result which could be achieved by making a residence or contact order.[21]

As with all the other s.8 orders, a specific issue order will, unless discharged by the court, normally last until the child reaches the age of sixteen, although where there are exceptional circumstances the court may make an order that will last until the child reaches the age of eighteen.[10]

Directions and Conditions

In addition to the activity directions and conditions that may be attached to a contact order, any section 8 order may—

(a) contain directions about how it is to be carried into effect;

(b) impose conditions which must be complied with by any person—

(i) in whose favour the order is made;

(ii) who is a parent of the child concerned;

(iii) who is not a parent of his but who has parental responsibility for him; or

(iv) with whom the child is living,

and to whom the conditions are expressed to apply;

(c) be made to have effect for a specified period, or contain provisions which are to have effect for a specified period;

(d) make such incidental, supplemental or consequential provision as the court thinks fit.[26]

Examples of such directions and conditions include a condition attached to a contact order that the parent with care of the child send to the other parent photographs and specified information about the child [27] and, exceptionally, a condition attached to a residence order preventing the parent with care moving from a specific geographical area.[28]

The 'No Order' Principle

Where a court is considering whether or not to make a section 8 order, it shall not make the order unless it considers that doing so would be better for the child than making no order at all.[29] The most common scenario here is where the parties reach agreement at court: is an order then required? The onus is on the party or parties wanting the order to persuade the court that it is better for the child to make the order, rather than make no order at all.[30]

Restricting Future Applications

On disposing of any application for an order under the Children Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under the Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.[31] In Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [32] Butler-Sloss LJ drew up a number of guidelines regarding the use of s.91(14) including:

that the power is to be used sparingly, being the exception and not the rule;
that it is generally seen to be a weapon of last resort in cases of repeated and unreasonable applications;
that it may be imposed with or without limitation of time;
that the degree of restriction should be proportionate to the harm it is intended to avoid, thus the court should specify, where appropriate, the type of application to be restrained.

[1] Children Act 1989, s.12(1) .
[2] Children Act 1989, s.12(2) .
[3] Children Act 1989, s.5(6) .
[4] Children Act 1989, s.11(4) .
[5] A v A & Ors [2004] EWHC (Fam) 142 , [2004] 1 FLR 1195.
[6] Pengelly v Enright-Redding [2005] EWCA Civ 1639 , [2006] 2 FLR 347 (also known as Re P (Shared Residence Order) ).
[7] D v D [2001] Fam Law 183, [2000] EWCA Civ 3009 , [2001] 1 FCR 147, [2001] 1 FLR 495.
[8] Children Act 1989, s.13(1) .
[9] Children Act 1989, s.13(2) .
[10] Children Act 1989, s.9(6) .
[11] Children Act 1989, s.12(5) .
[12] Children Act 1989, s.11(5) .
[13] See, for example, F (a child) [2006] EWCA Civ 1426 , [2007] 1 FLR 1015.
[14] Re H (Contact Principles) [1994] 2 FLR 969.
[15] Per Butler-Sloss P. in L & Ors (children), Re [2000] EWCA Civ 194, [2000] 4 All ER 609, [2001] Fam 260, [2000] 2 FCR 404, [2000] Fam Law 603, [2001] 2 WLR 339, [2000] 2 FLR 334.
[16] Children Act 1989, s.11A .
[17] Children Act 1989, s.11C .
[18] Children Act 1989, s.11(6) .
[19] As in Clayton v Clayton [2007] 1 FLR 11, [2007] 1 All ER 1197, [2006] Fam 83, [2006] EWCA Civ 878 , [2006] 3 WLR 599, [2007] EMLR 65, (2007) UKHRR 264, (2006) HRLR 34.
[20] Re H (Prohibited Steps Order) [1995] 1 FLR 638.
[21] Children Act 1989, s.9(5) .
[22] See, for example, M v M (Specific Issue: Choice of School) [2007] 1FLR 251.
[23] As in Re J (Child) (2000) 52 BMLR 82, [2000] 1 FCR 307, [2000] Fam Law 246, [1999] EWCA Civ 3022 , [2000] 1 FLR 571.
[24] For example Re R (A Minor) (Blood Transfusion) [1993] 2 FLR 757.
[25] See Dawson v. Wearmouth [1999] UKHL 18 ; [1999] 2 AC 309; [1999] 2 All ER 353; [1999] 2 WLR 960; [1999] 1 FCR 625; [1999] 1 FLR 1167; [1999] Fam Law 378.
[26] Children Act 1989, s.11(7) .
[27] Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124.
[28] B v B (Residence: Condition Limiting Geographical Area) [2004] 1 FLR 979.
[29] Children Act 1989, s.1(5) .
[30] Re G (Children) [2006] 1 FLR 771.
[31] Children Act 1989, s.91(14) .
[32] [1999] 2 FLR 573.

The Welfare Checklist

In deciding whether to make a s.8 order the court will have regard to all of the circumstances and in particular the following:-

(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, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g) the range of powers available to the court under this Act in the proceedings in question.[1]

These matters will now be dealt with in turn:

The ascertainable wishes and feelings of the child

The wishes of the child will normally be ascertained by the CAFCASS officer speaking directly with the child, and set out in their welfare report; rarely will a child be required to attend court, save where they attend the directions appointment.

The amount of weight given to a child's wishes will depend largely upon the child's age: the older the child, the more weight the court is likely to give to the child's wishes.There is no 'cut-off' age beyond which the courts will follow the child's wishes, but it has been stated [2] that, save in respect of medical treatment, orders which contradict "the wishes of normal children aged 16, 14 and 12 are virtually unknown to family law". On the other hand, it is unusual for the court to find the views of children under 10 to be conclusive.[3]

The child's physical, emotional and educational needs

This can cover such matters as physical disability, long-term illness, special health needs and special educational needs. It also covers basic matters such as suitable housing, not just in terms of providing appropriate accommodation, but also in terms of location, especially if a move to a new area is proposed, taking children away from their friends and involving a change of school. Emotional needs can include an attachment to a particular parent, and ties with siblings.

The likely effect on the child of any change in circumstances

This can be relevant to contact applications (for example where relationships have broken down or never developed due to lack of contact), but is most relevant to applications involving a change of residence, especially where there is considerable distance between the homes of the parents. Such matters as change of schools and moving away from friends can be particularly relevant. There is also the issue of changing long-standing arrangements: the 'status quo' argument: the longer an arrangement persists, the less likely the court is to alter it.

The child's age, sex, background and any characteristics which the court considers relevant

It may be considered that a very young baby would be better off residing with its mother[4], but otherwise age is only likely to be relevant with regard to the child's wishes, as mentioned above.

As to the child's sex, there is no presumption that a child will be better off residing with a parent of the same gender, although it may be argued that teenage girls are better off residing with their mother.

Characteristics can include religious beliefs and particular interests that the child may share with one parent.

Any harm which the child has suffered or is at risk of suffering

This can include emotional as well as physical harm. Obviously, if the child has suffered harm previously whilst in the care of one parent, whether by that parent's actions or neglect, then this will be a very significant factor in any application. Witnessing domestic violence by one parent against the other can also be relevant under this heading.

How capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child's needs

This will cover not just parenting skills but also practicalities such as work commitments - if these necessitate the child being left with a carer or relative, then their capability of meeting the child's needs also becomes relevant. Other relevant matters could be the health of the parents and whether they have any alcohol or drug abuse problems.

The range of powers available to the court under this Act in the proceedings in question

The court has power to make orders other than those applied for[5], and therefore can make any order that it considers to be appropriate. It may also order that no further applications be made without leave.

[1] Children Act 1989 s.1(3) .
[2] Re B (Change of Surname) [1996] 1 FLR 791, per Wilson J.
[3] For example Klentzeris v Klentzeris [2007] EWCA Civ 533 , [2007] 2 FLR 996.
[4] See Re W (Residence Order) [1992] 2 FLR 332.
[5] Children Act 1989, s.10(1) .

Who May Apply for a Section 8 Order

The classes of person who may apply for a s.8 order are set out in the Children Act 1989, s.10 . The following may apply for any s.8 order:

(a) Any parent or guardian of the child;

(b) Any person who by virtue of s.4A has parental responsibility for the child (step-parents);

(c) Any person in whose favour a residence order is in force with respect to the child.[1]

Further, the the following persons are entitled to apply for a residence or contact order with respect to a child—

(a) any party to a marriage (whether or not subsisting) in relation to whom the child is a child of the family;

(b) any civil partner in a civil partnership (whether or not subsisting) in relation to whom the child is a child of the family;

(c) any person with whom the child has lived for three of the last five years and within the preceding three months;

(d) 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 a 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 the child.[2]

Any other person may only apply for a s.8 order with the leave of the court. Where the person applying for leave is the child concerned, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed s.8 application.[3] Where the person applying for leave is not the child, the court must, in deciding whether 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 to such an extent that he would be harmed by it; and

(d) where the child is being looked after by a local authority—

(i) the authority's plans for the child's future; and

(ii) the wishes and feelings of the child's parents.[4]

[1] Children Act 1989, s.10(4) .
[2] Ibid, s.10(5) &(10) .
[3] Ibid, s.10(8) .
[4] Ibid, s.10(9) .

Procedure - Issuing the S.8 Application

Where the leave of the court is required to apply for a s.8 order, the person seeking leave must file with the court a written request for leave in Form C2 , setting out the reasons for the application, and a draft of the application for the making of which leave is sought (see below), together with sufficient copies for one to be served on each respondent. On considering a request for leave, the court will either grant the request or direct that a date be fixed for the hearing of the request. [1]

The application itself is made on Form C100 . If the applicant believes that the child(ren) have suffered or are at risk of suffering any harm from any form of domestic abuse, violence within the household, child abduction or other conduct or behaviour by any person who has had contact with the child then they should also complete a supplemental information Form C1A . The applicant must then file the C100, any C1A (together with sufficient copies for one to be served on each respondent) and the appropriate fee with the court.[2]

The persons who must be made respondents to the application are set out in Appendix 3 to the Family Proceedings Rules , but in most cases will be every other person with parental responsibility for the child.

The court will then fix a date for the initial directions appointment and send to the applicant a notice of proceedings form (C6) with the hearing date on it, a sealed copy of the C100 form and an acknowledgement form (C7).[3] The applicant must serve these documents on the respondent(s) at least 14 days before the directions hearing [4], and file a statement of service in Form C9 with the court.[5]

The respondent should compete the acknowledgement (stating, inter alia, whether they oppose the application), file it with the court and serve the parties, within 14 days of service.[6]

[1] Family proceedings Rules 1991, r.4.3 .
[2] Family Proceedings Rules 1991, r.4.4(1) & (1A).
[3] Family Proceedings Rules 1991, r.4.4(2) .
[4] Family Proceedings Rules 1991, r.4.4(3) .
[5] Family Proceedings Rules 1991, r.4.8(7) .
[6] Family Proceedings Rules 1991, r.4.9(1) , as amended.

Procedure- The Directions Appointment

The Private Law Programme sets out guidance as to the main aims of the directions appointment (somewhat clumsily called the 'First Hearing Dispute Resolution Appointment' in the guidance). Those aims are as follows:

1. To identify immediate safety issues - see the next section 'Where Domestic Violence is Alleged'.

2. Wherever possible, to have a CAFCASS officer available to 'facilitate early dispute resolution'.

3. Save in exceptional circumstances (e.g. safety) to refer the family to outside assistance, such as mediation.

4. To exercise effective court control by giving appropriate directions.

The exact procedure on the directions appointment will vary from court to court and depend upon what local assistance is available. However, in practice the appointment usually takes place in two parts:

1. Discussion with the CAFCASS officer, who will interview the parties (usually together and without legal representatives being present), to ascertain the issues and investigate the possibility of the matter being resolved by agreement, possibly with the assistance of out of court mediation. At the end of the interview the CAFCASS officer will explain what has been discussed to the legal representatives and report the outcome of the interview to the court.

2. The directions hearing before the court. If agreement has been reached the court will consider whether an order should be made in the terms of the agreement (having regard to the 'no order' principle) and, if so, will make the order. If the parties have agreed to attend out of court mediation then the court will adjourn the application for an appropriate period to enable the mediation to take place. If there is a partial agreement, for example for limited contact on a contact application, then the court may adjourn the application and fix a review hearing after an appropriate period. If, on the other hand, no agreement has been reached then the court will give whatever directions it considers necessary, including directions:

(a) for the timetabling of the proceedings;

(b) to vary time limits

(c) for the attendance of the child;

(d) for the appointment of a guardian ad litem (i.e. a guardian to represent the interests of the child),

(e) for the service of documents;

(f) for the submission of evidence, including experts' reports;

(g) for the preparation of welfare (CAFCASS) reports ;

(h) for the transfer of the proceedings to another court;

(i) to consolidate the application with other proceedings.[1]

A party may not, without the leave of the court, adduce evidence without first filing and serving a written statement setting out the substance of that evidence, or rely upon any documents without first filing and serving copies.[2] Note, however, that no party to a s.8 application may file any documentary evidence until such time as the court directs[3] (the intention being to provide the parties with an opportunity to resolve matters amicably, before inflammatory statements are exchanged). The directions will therefore include a direction that each party file and serve on the parties, any welfare officer and any guardian ad litem who has been appointed:

(a) written statements of the substance of the oral evidence which that party intends to adduce at a hearing; and

(b) copies of any documents, including experts' reports, upon which that party intends to rely at a hearing,

at or by such time as the court directs.[2]

[1] Family Proceedings Rules 1991, r.4.14(2) .
[2] Family Proceedings Rules 1991, r.4.17(1) .
[3] Family Proceedings Rules 1991, r.4.17(5) .

Procedure - Where Domestic Violence is Alleged

The practice to be followed where either party alleges domestic violence 'or there is otherwise reason to suppose, that the subject child or a party has experienced domestic violence perpetrated by another party or that there is a risk of such violence' is set out in the Revised Practice Direction: Residence and Contact orders: Domestic Violence and Harm, of 14 January 2009 .

The basic requirements of the Practice Direction are as follows:

1. The court must send a copy of all residence and contact applications to CAFCASS, who should undertake initial screening "in accordance with their safeguarding policies". [Paragraph 6]

2. The court must ascertain at the earliest opportunity whether domestic violence is raised as an issue and must consider the likely impact of that issue on the conduct and outcome of the proceedings. In particular, the court should consider whether the nature and effect of the domestic violence alleged is such that, if proved, the decision of the court is likely to be affected. [Paragraph 11]

3. If necessary, the court will fix a 'fact-finding hearing', at which the court will make findings of fact in relation to any disputed allegations of domestic violence. [Paragraph 13]

4. In every case where a finding of domestic violence is made, the court should consider the conduct of both parents towards each other and towards the child; in particular, the court should consider:

(a) the effect of the domestic violence which has been established on the child and on the parent with whom the child is living;

(b) the extent to which the parent seeking residence or contact is motivated by a desire to promote the best interests of the child or may be doing so as a means of continuing a process of violence, intimidation or harassment against the other parent;

(c) the likely behaviour during contact of the parent seeking contact and its effect on the child;

(d) the capacity of the parent seeking residence or contact to appreciate the effect of past violence and the potential for future violence on the other parent and the child;

(e) the attitude of the parent seeking residence or contact to past violent conduct by that parent; and in particular whether that parent has the capacity to change and to behave appropriately. [Paragraph 27]

5. Where the court has made findings of domestic violence but, having applied the welfare checklist, nonetheless considers that direct contact is in the best interests of the child, the court should consider what if any directions or conditions are required to enable the order to be carried into effect and in particular should consider:

(a) whether or not contact should be supervised, and if so, where and by whom;

(b) whether to impose any conditions to be complied with by the party in whose favour the order for contact has been made and if so, the nature of those conditions, for example by way of seeking advice or treatment (subject to any necessary consent);

(c) whether such contact should be for a specified period or should contain provisions which are to have effect for a specified period;

(d) whether or not the operation of the order needs to be reviewed; if so the court should set a date for the review and give directions to ensure that at the review the court has full information about the operation of the order. [Paragraph 28]

6. Where the court does not consider direct contact to be appropriate, it shall consider whether it is in the best interests of the child to make an order for indirect contact. [Paragraph 29]

Procedure - The Cafcass Report

A court considering a question with respect to a child under the Children Act 1989 may request a report from CAFCASS or from a local authority "on such matters relating to the welfare of that child as are required to be dealt with in the report".[1] (In private law children matters, the report is usually requested from CAFCASS, hence the title of this topic.)

The CAFCASS officer must make such investigations as may be necessary for him to carry out his duties and shall, in particular—

(a) contact or seek to interview such persons as he thinks appropriate or as the court directs;

(b) obtain such professional assistance as is available to him which he thinks appropriate or which the court directs him to obtain.[2]

In practice, the CAFCASS officer essentially has a free hand as to how he should conduct his enquiries prior to the preparation of his report, but these normally include interviewing the parties, seeing the children with the parties and making other relevant enquiries, for example with the child's school. The report will usually contain a recommendation as to what order or orders the court should make.

After the filing of the CAFCASS report, the court may direct (usually upon the application of one of the parties) that the CAFCASS officer attend any hearing at which the report is to be considered, and at that hearing any party may question the CAFCASS officer about his report.[3]

[1] Children Act 1989, s.7(1) .
[2] Family Proceedings Rules 1991, r.4.11(2) .
[3] Family Proceedings Rules 1991, r.4.13(3) .

Procedure to Final Hearing

In any s.8 proceedings the court must have regard to the general principle that any delay is likely to prejudice the welfare of the child.[1] The court will therefore keep a tight rein on the timing of the proceedings. Accordingly, any time limits set by the rules or by the court may not be extended except by direction of the court (although the parties may agree to shorten them).[2] Further, at the end of the Directions Appointment and every other hearing, save for the final hearing, the court must fix a new date upon which the proceedings will come before the court again.[3]

Should either party wish to file any further documentation, then they will need to seek leave of the court to do so.[4] Similarly, should either party wish to have the child medically or psychiatrically examined, or otherwise assessed, for the purpose of preparation of expert evidence for use in the proceedings then they will require the leave of the court to do so.[5]

Where the proceedings are taking place in the High Court or a county court, the applicant will be required to prepare a bundle of documents for the court prior to the final hearing, in accordance with the Practice Direction of the 27th July 2006 .

The final hearing will take place in chambers (i.e. in private, save for accredited media representatives).[6] The procedure at the hearing is governed by rule 4.21 Family Proceedings Rules 1991 , which deals with order of evidence, delivery of judgment, recording of any order made, etc.

Appeal against an order must be made within 14 days of the order or, with the leave of the court to which, or judge to whom, the appeal is to be brought, within such other time as that court or judge may direct.[7] Appeal against an order made by a family proceedings court is to the High Court[8], appeal against an order made by a district judge in the county court is to the judge of that court[9] and appeals against orders made by county court or High Court judges are directly to the Court of Appeal.

[1] Children Act 1989, s.1(2) .
[2] Family Proceedings Rules 1991, r.4.15(1) .
[3] Family Proceedings Rules 1991, r.4.15(2) .
[4] Family Proceedings Rules 1991, r.4.17(4) .
[5] Family Proceedings Rules 1991, r.4.18(1) .
[6] Family Proceedings Rules 1991, r.4.16(7) .
[7] Family Proceedings Rules 1991, r.4.22(3) .
[8] Children Act 1989, s.94(1) .
[9] Family Proceedings Rules 1991, r.8.1 .

Enforcement of Children Orders

General Enforcement Powers

Section 8 orders made by a family proceedings court may be enforced by fining (£50 per day, up to a maximum of £5000), or by committal to prison for up to two months.[1] The court may act on its own motion or by complaint.

In the High Court and county court, breach of an order may be treated as a contempt of court. A contemnor may be committed to prison (for up to two years by the High Court[2]), have their property sequestered or be fined. Again, the court may act of its own motion or on application.

In practice, the courts will rarely use these enforcement powers upon the first breach of an order, unless that breach was blatant and without any excuse. Instead, the court will investigate the reasons for the breach and, for example, re-define a contact order to address any problems that has arisen since the original order was made.

On the other hand, in an extreme case of failure to comply with a contact order the court has been prepared to grant a residence order in favour of the parent who was denied contact.[3]

Recovery of Child

If a person fails to comply with an order to give up a child then the court may make an order authorising an officer of the court or a constable to take charge of the child (if necessary, entering and searching premises where they have reason to believe the child may be found), and deliver it to the 'person concerned'.[4]

Contact Enforcement Orders

The court may, on the application of the other party (in Form C79 ), make an order (an ‘enforcement order') imposing an ‘unpaid work requirement' on the person in breach of the contact order, provided that the contact order contains a notice warning of the consequences of failing to comply with it. All contact orders made on or after the 8th December 2008 should contain such a notice, and either party can apply to the court (on Form C78 ) for such a notice to be attached to contact orders made before that date.[5]

Compensation for financial loss.

The court may, on the application of the other party (again, in Form C79 ), make an order that the person in breach of the contact order pay financial compensation to the other party for any losses that they incurred as a result of the failure to comply with the contact order. Again, the requirement of a warning notice applies, as above.[6]

[1] Children Act 1989, s.14 (which refers to residence orders) & Magistrates' Courts Act 1980, s.63(3) (which also applies to contact orders, as they "require the doing of anything other than the payment of money").
[2] Contempt of Court Act 1981, s.14(1) .
[3] A (A Child) [2007] EWCA Civ 899 .
[4] Family Law Act 1986, s.34 .
[5] Children Act 1989, s.11J - N.
[6] Children Act 1989, s.11O & P.

Child Abduction

Within England & Wales

If the parent from whom the child has been abducted has a residence order, then they may seek to have the child returned by enforcing that order, as described in the section on enforcement. If they do not have a residence order, then they may apply for a residence order without notice, or on short notice.[1]

As already mentioned under enforcement, if a person fails to comply with an order to give up a child then the court may make an order authorising an officer of the court or a constable to take charge of the child (if necessary, entering and searching premises where they have reason to believe the child may be found), and deliver it to the parent with a residence order.[2]

If the child's whereabouts are not known, the court may order any person who it has reason to believe may have relevant information to disclose it to the court.[3]

Within the UK

Section 8 orders made in relation to a child under 16 will be recognised in any other part of the United Kingdom as having the same effect in that part as if it had been made by a local court.[4] If it is suspected that the child has been abducted to another part of the UK then application may be made to the court that made the s.8 order for the order to be registered in that part of the UK.[5] Once the order has been registered, the court in which it is registered shall have the same powers for the purpose of enforcing it as it would have if it had itself made the order.[6]

International

It is a criminal offence for a person ‘connected' with a child under 16 (including a parent) to take or send the child out of the United Kingdom without the appropriate consent (i.e. from the person with parental responsibility or the court).[7] A person does not commit an offence by taking or sending a child out of the United Kingdom without obtaining the appropriate consent if—

(a) he is a person in whose favour there is a residence order in force with respect to the child, and

(b) he takes or sends him out of the United Kingdom for a period of less than one month,

unless he does so in breach of an order under Part II of the Children Act 1989.

Abduction to a country that has ratified or acceded to the Hague Convention on the Civil Aspects of International Child Abduction – The Convention essentially requires that any child under 16 who is wrongfully removed from a contracting state where they are habitually resident should be returned to that state. The Convention was implemented in the United Kingdom by Part I of the Child Abduction and Custody Act 1985 . Every Convention country has a designated Central Authority ‘to discharge the duties which are imposed by the Convention' (the Lord Chancellor in England and Wales), and any person whose ‘custody rights' have been breached by removal of the child may apply either to the Central Authority of the child's habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child. The Central Authority of the State where the child is must then take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child, although the judicial authority of that State is not bound to order the return of the child where the person with ‘custody rights' agreed to or acquiesced in the removal, or where there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

Abduction within Europe – Brussels II Bis takes precedence over the Hague Convention in cases involving Member States. Article 11 requires that where an application is made for the return of a child, the court should issue its judgment within six weeks, and where return is refused the court must send a copy of the judgment to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal; that court or authority will then invite the parties to make submissions to the court within three months, ‘so that the court can examine the question of custody of the child'.

Abduction to a non-Convention country – A parent wishing to obtain the child's return may seek an order requiring the child's return, although that order may not be recognised by the non-Convention country. Otherwise, proceedings may be brought in that country.

Prevention

Passports – If the child does not have a passport then, where there is a court order restricting the child's removal from the jurisdiction, such as a residence order, the Identity & Passport Service should be notified, and they will then not issue a passport for the child. Where the child already has a passport then, where there is a court order restricting the child's removal from the jurisdiction, the court by which the order was made may require any person to surrender any United Kingdom passport which has been issued to, or contains particulars of, the child.[8]

Port alerts – Where there is a real and imminent danger of a child under 16 being removed from the jurisdiction, the police may be requested to assist by instituting a port alert, whereby particulars of the child are circulated to all ports, and police and immigration officers will attempt to identify the child and prevent his removal. The child's name remains on the port stop list for four weeks, but further applications may be made.[9]

[1] Family Proceedings Rules 1991, r.4.8(8) .
[2] Family Law Act 1986, s.34 .
[3] Family Law Act 1986, s.33 .
[4] Family Law Act 1986, s.25(1) .
[5] Family Law Act 1986, s.27(1) .
[6] Family Law Act 1986, s.29(1) .
[7] Child Abduction Act 1984, s.1 .
[8] Family Law Act 1986, s.37 .
[9] Practice Direction [1986] 1 All ER 983, 1 WLR 475.

Adoption

Adoption orders

An adoption order is an order giving parental responsibility for a child to the adopters made on their application. [1] The adoption order also operates to extinguish permanently the parental responsibility which any person had for the child immediately before the making of the order [2], save in single step-parent adoption [3].

An adoption order is irrevocable, save on subsequent legitimation [4]. The adopted child is deemed to be the adopter's legitimate child and, if adopted by a couple, is to be treated as the child of their relationship.[5]

Adoption of a child who is habitually resident in a state that is a signatory to the Hague Convention on Intercountry Adoption is a Convention adoption. Convention adoptions do not necessarily achieve a complete severance of all ties with the natural family, in the same way as UK adoptions. If the state is not a signatory, and if the adoption is not otherwise recognised in the UK as a valid 2overseas adoption, an adoption application must be made in England and Wales.

Who may apply for an adoption order

A couple may apply to adopt a child provided that, at the time the adoption order is made:

both of them are at least 21 years of age[6], or

one of them is the mother or father of the child to be adopted and is at least 18 years of age, and the other is at least 21 [7];

and

at least one of the couple is domiciled in a part of the ‘British Islands' (i.e. UK, Channel Islands or the Isle of Man) [8] or

both members of the couple have been habitually resident in a part of the British Islands for a period of at least one year, ending with the date of the application to the court.[9]

A ‘couple' means two people who are living in an enduring family relationship. They may be of different sexes or the same sex, married, unmarried or civil partners.[10]

One person may apply to adopt a child provided that at the time the adoption order is made the person applying is at least 21 years of age and is:

not married/does not have a civil partner; or

the partner of the mother or father of the child to be adopted; or

married or has a civil partner and is able to satisfy the court that:

his or her husband/wife or civil partner cannot be found; or

• they have separated and are living apart and the separation is likely to be permanent; or

his or her husband/wife or civil partner is incapable of making an application for an adoption order by reason of ill-health;[11]

and he or she

is domiciled in a part of the British Islands [12], or

has been habitually resident in a part of the British Islands for a period of at least one year, ending with the date of the application to the court.[13]

Residence condition

If the child was placed for adoption with the applicant or applicants by an adoption agency, or the applicant is a parent of the child, the child must have had his home with the applicant or, in the case of an application by a couple, with one or both of them at all times during the period of ten weeks preceding the application.[14]

Otherwise:

If the applicant or one of the applicants is the partner of a parent of the child, the condition is that the child must have had his home with the applicant or, as the case may be, applicants at all times during the period of six months preceding the application.[15]

If the applicants are local authority foster parents, the condition is that the child must have had his home with the applicants at all times during the period of one year preceding the application.[16]

In any other case, the condition is that the child must have had his home with the applicant or, in the case of an application by a couple, with one or both of them for not less than three years (whether continuous or not) during the period of five years preceding the application.[17]

Consent to adoption

If the child has a parent or guardian, an adoption order may only be made if one of the three conditions is met:

1. That the parent or guardian consents to the making of the adoption order, or that their consent should be dispensed with (see below); or

2. That :

(a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made,

(b) either—

(i) the child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old, or

(ii) the child was placed for adoption under a placement order, and

(c) no parent or guardian opposes the making of the adoption order.

3. That the child is free for adoption in Scotland or Northern Ireland.[18]

If the child's parents or guardian have not consented to the adoption and the applicant is requesting the court to dispense with their consent, the court will need to be satisfied that:

the parent or guardian cannot be found, or is incapable of giving consent, or

the welfare of the child requires that their consent be dispensed with.[19]

Applying for adoption order

If the child was not placed with the proposed adopters for adoption by an adoption agency, the proposed adopters must give notice to the local authority for the area in which they reside of their intention to apply for an adoption order. The notice must be not more than two years, or less than three months, before the date on which the application for the adoption order is made.[20]

An application for an adoption order may be commenced in:

a Family Proceedings Court.

a county court designated as an Adoption Centre.

the High Court.[21]

The following must be filed with the court:

1. The Application for an Adoption Order ( Form A58 ), together with three copies;[22]

2. A certified copy of the full birth certificate for the child or, if the child has previously been adopted, a certified copy of the entry in the Adopted Children Register; and

3. The appropriate fee.

The following documents may also be required:

if the child has been placed for adoption or freed for adoption by a court, a certified copy of the placement order or freeing order;

if the proposed adopters are requesting the court to dispense with the consent of any parent or guardian to the adoption, a written +statement of the facts they are relying on in support of the request, together with two copies;

if evidence of the proposed adopters' marriage or civil partnership is required, a certified copy of their marriage certificate or certificate of civil partnership;

if the husband, wife or civil partner of the proposed adopter has died, a certified copy of their death certificate;

if the proposed adopter is divorced or their civil partnership has been dissolved, a copy of any decree absolute, or a copy of any dissolution order;

separate medical reports on the proposed adopters' health and the health of the child, made during the period of three months before the date of the application, unless the child was placed with the proposed adopters by an adoption agency, or if he or she is the child of either applicant, or the applicant is applying alone as the partner (including husband, wife or civil partner) of the child's mother or father.

The following persons will be respondents to the adoption application:

each parent who has parental responsibility for the child or guardian of the child unless he has given notice under section 20(4)(a) (statement of wish not to be informed of any application for an adoption order) which has effect;

any person in whose favour there is provision for contact;

any adoption agency having parental responsibility for the child under section 25;

any adoption agency which has taken part at any stage in the arrangements for adoption of the child;

any local authority to whom notice under section 44 (notice of intention to adopt or apply for a section 84 order (giving parental responsibility prior to adoption abroad)) has been given;

any local authority or voluntary organisation which has parental responsibility for, is looking after, or is caring for, the child; and

the child in specific circumstances [23]

Procedure after issue

The detailed procedure after the application has been issued is set out in Family Procedure (Adoption) Rules 2005, r.24 , but essentially the court will:

Set a date for the first directions hearing (which must be within 4 weeks of the date that the application was issued), or simply give the first directions – see below;

Appoint a CAFCASS officer to act as a children's guardian and/or reporting officer;

Request a welfare report (if required); and

Set a date for the hearing of the application.

At the first directions hearing the court will—

(a) fix a timetable for the filing of—

(i) any report relating to the suitability of the applicants to adopt a child;

(ii) any report from the local authority;

(iii) any report from a children's guardian, reporting officer or children and family reporter;

(iv) if a statement of facts has been filed, any amended statement of facts;

(v) any other evidence, and

give directions relating to the reports and other evidence;

(b) consider whether an alternative dispute resolution procedure is appropriate and, if so, give directions relating to the use of such procedure;

(c) consider whether the child or any other person should be a party to the proceedings and, if so, give directions joining that child or person as a party;

(d) give directions relating to the appointment of a litigation friend for any patient or non-subject child unless a litigation friend has already been appointed;

(e) consider whether the case needs to be transferred to another court and, if so, give directions to transfer the proceedings to another court;

(f) give directions about—

(i) tracing parents or any other person the court considers to be relevant to the proceedings;

(ii) service of documents;

(iii) (subject to rules on confidentiality) disclosure as soon as possible of information and evidence to the parties; and

(iv) the final hearing.[24]

AN INTRODUCTION TO FAMILY LAW Chapter 3 - CHILDREN - PRIVATE LAW Parental Responsibility

AN INTRODUCTION TO FAMILY LAW

Chapter 3 - CHILDREN - PRIVATE LAW

Parental Responsibility