CP Lec 4 Child Arngmnt - Lecture notes 4 PDF

Preview

Summary

Sonia Crawford...

Description

Client Practice lecture 4: Children issues: -Children Act 1989 Applications in respect of children: children’s welfare are paramount. Main Act: Children Act 1989 - amended and changed by Children& Families Act 2014 -Who are the Children of the family? S. MCA: children of both parties, adopted children, any other child who is not theirs who is been treated by the parties as a child of the family. This is when a couple get together when one of them already has a child and the other party treats them as a child of the family. The test is objective to decide on that. (this does not include a child placed with the family as foster parents) -The child becomes a child of the family only when they are born, Actions before the birth of the child do not take account of the child as the child of the family: Av A (unborn child) [1974] -Re A (child of the family) [1998]: grandparents taking care of child, they divorced. Issue? Is the grandchild a child of the family? Court said that the child was a child of the family because the child called them mum and dad, they made decisions for the child without consulting the mother. The grandfather said no and the grandmother said yes. Consequences of treating the child as a child of the family: child support upon divorce, application as a right for a child arrangement order AND: a child can claim the estate of a dead adult who had considered the child a child of the family under the Inheritance (Provision for Family and Dependants) Act 1975 s1(d) -Children Act 1989: 3 Principles: 1. No order presumption s.1(5):court will not make an order in respect of a child unless they have been ASKED to do so. (non interventionist principle) 2. Delay: any delay in determining the question is likely to prejudice the welfare of the child s.1(2): 3. The child’s welfare is paramount s.1(1) Court determining upbringing or admin of child’s income : child’s welfare is paramount. -No definition for welfare BUT there is a checklist for welfare under s.1(3) Reports: court (children and family reporter) s.7 or s.37 report (Social Services) -S.1(3) amended by s.11 of CFA 2014 court to presume the involvement of each parent in the child’s life will further its welfare.

-Parental Responsibility s.4 CA1989:

Defined in s.3(1) CA as all the rights, duties, powers and responsibilities (responsibilities not rights) : parents have to exercise responsibilities in respect of their children like: providing home, moderate and reasonable punishment (excess of that is assault) R v Smith NOTE: child arrangement orders under s.8 do not confer PR to the person who does not have PR. an application for PR under s.4 will have to be sought. -Who has a responsibility and how can it be obtained? Who? 1. Married s.2(1) CA (s.1 Family Law Reform Act 1987) 2. Mothers (regardless of whether the father is known or not) 3. Agreement s.4 (for the unmarried father: can acquire parental responsibility by way of agreement.) can be terminated by a court order s.4(3): Re P (terminating PR) [1995]: baby sustained injuries while in mom’s tummy. Neither parent said that is was caused by any of them. It was then found that the father caused it. The court sentenced him to prison and removed PR. ALSO: Re F (indirect contact) (2007) history of violence. father had 68 breaches of a restraining order. Sentenced to prison. Mother moved 10 times to escape from father. Court terminated PR. 4. Court Order s.4: (if father is not married to mother and mother says that he has no PR. he can apply to court) Re H (1991): 3 points that court will look at when giving an order for PR: commitment, reasons and attachment.( not a very high bar) - when might it be refused? When its not proper or when there are other reasons why the father is applying for the order. M v M (1999): violence. Also, when father is suspected of being a pedophile the order can be refused: R v P (1998) father much much older than mother, suspected of being a pedo or using PR to undermine mother. NOTE: Re S (PR) [1985]: it is about duties and responsibilities, does not give the father the right to interfere in the child’s day to day life. D v S (parental responsibility) [1995] 3 FLR 783. More than one person can have parental responsibility and some parts of that responsibility can be met on behalf of the person with parental responsibility, however, some decisions cannot be made without agreement of both of those with PR, see for example: Re J (specific issue orders; Muslim upbringing and circumcision) [2000] 5. S.4 CA1989 (as amended by s.111 of the Adoption and Children Act 2002 - came into force on 1/12/2003 - not retrospective) Father will have PR if he registers the birth jointly with the mother. Named on the birth certificate with the mother. (this is when the father

and mother are not married. NOTE: mother needs consent of father to have his name on birth certificate if they are not married. The father must be present to sign his name in. ALSO the father needs the consent of the mother to be registered if he’s not married to her. -Step Parent: can obtain PR by agreement with parent or court order. (S.4A) -B v UK (2000) father had no rights until or unless a court order or formal agreement was made and entered into. ECHR: difference in treatment of married and unmarried fathers is not in breach of any rights. The discrimination is made on objective justifiable grounds. 6. Unmarried father with a residence order : when he gets an order for the child to live with him, he will automatically get PR. Child arrangement order.

Child Arrangement Orders: Changes made by CFA 2014 s.10(1) family mediation information and assessment meeting (MIAMS).: compulsory to attend before making an application (s.10 CFA 2014) Section 8 orders: child arrangement orders( residence and contact), specific issues, prohibited steps. - when u want an order, u have to look at the welfare checklist -s.8 orders cannot be made or made to last beyond a child’s 16th bday unless the circumstances are exceptional S.9(6). S.8 orders may contain directions or impose conditions s.11(7) Note: parent who has a residence order in force can apply for s.8 order (s.10(4)) // s.10(5): others who can apply for child arrangement orders w/out seeking leave of the court. 1. Residence order (under child arrangement order) u will have PR. u can split where the child will live but that is very rare. U must show that the order is in the best interest of the child. Re A (a child) (joint residence, PR) [2008] Change of name:Where a residence order in force, the surname of the child cannot be changed s13 (1) CA1989. -Dawson v Wearmouth [2008] unmarried father. If parents unmarried, mother can name her child whatever she wants. Couple not married. Together for month after child birth. She had other children. He left afte child was birth. She named her child with her married name (as herself and her other children). He said he didnt want his child to get another name he wanted his name. He did not have PR. HL: the q is what is in the child’s best interest? To be known by his fathers or his mother’s assumed name? They decided that he should have his mother’s married name bc his mother’s name, his siblings name, and the family he is in. the father was not even there. Enforcement of RO: Can enforce RO under s.14 Children Act 1989 by using s.63(3) Magistrates’ Court Act

1980 as if it were an order requiring the other person to produce the child to the person with the RO. Copy of the RO must be served on the respondent. Also can be applied to access – now contact – orders: P v W [1984] Note: s.13 CA: child cant be removed from UK for a month or more without either the written consent of every person who had parental responsibility for the child or the leave of the court

2. Contact orders: can be defined or undefined (contact regular or on thursdays for example) it is presumed that good contact is going to be beneficial to the child. -Elshotz v Germany [2000] // -Kosmopoulou v Greece [2004]: assumption in english law that it is good for the child to have contact with a non-resident parent( strength of assumption depends on the nature of the parent’s relationship with the child). -no assumption in favour of step-parent Re H (A Minor) (Contact) [1994] ECtHR Re K (contact DV ) father violent to mother , mother suffered severe uncontrollable stress whenever he took the child, he was put in jail many times. Court cancelled direct contact and kept indirect contact (letters and photos) bc her stress can be conveyed to the child and the child might suffer. Re L (a child) leading case: principles to be applied: domestic violence: court will look at facts, disadvantages and advantages, risks -No good reason to refuse contact: Re M ( intractable contact) Mother refused to let father have contact , told children that father will sexually assault them. Local authority investigation: mother’s conduct causes stress to children and children given to their father and mother has to apply for contact order. Re O [1995] -when will the order be refused? When child is distressed or refuse contact Re F [1993] sons of trans father aged 12 and 9 did not want to see father in woman clothes while still a man. -what if kids were just uncomfy? Re L [1995] teenage boys uncomfy with father’s sec change. -the older the children the more their views are given weight. Re S [2002]: the law should respect their views -4 year old terrified of his father - destroy all letters by his father Re C [2000] - not even order indirect contact.

NOTE: Child abuse is not an automatic bar to contact: LvL (Child Abuse: Access) [1989] 2 FLR 16, CA, nor is domestic violence (see Re L etc above). Reasons for denial of order for contact for step parent: opposition of step parent regarding contact orders: Re B [1997] the step father said he would leave if order was given - risk to home life. -implacable hostility by parent against parent seeing child? Re D (contact: mother’s hostility) [1993] reformed father? -Re M (intractable contact dispute) [2003] -what if fear is genuine? Re D [1997] // risk of abduction or violence -Re H [2002] father with huntington’s disease. Preparations to commit suicide and kill children with him. Mother said contact order will affect her health. Phobias? Re L (contact, genuine fear)[2002] father was a hell’s angel who stabbed ex wife and solicitor and her bf. Direct contact denied. Indirect ok. Enforcement of these orders: Committing parent to prison: child welfare is material factor not paramount: Re S (contact dispute) [2005] V v V (implacable hostility) [2004] -Children & Adopting Act 2006 Pt 1 -amends CA 1989 ss11A-11G Enforcement and penalty orders: ● Contact activity directions/conditions ● Monitoring contact ● Warning notices ● Enforcement orders: undertake unpaid work / compensation from one part to other -prohibited steps order: concern about a specific step to be taken or already taken by a parent. The PSO orders specified actions cannot be taken. Croydon LBC v A (1992)

-specific issues: specific decisions to be made where dispute (not necessarily between parents): Re R (a minor) (blood transfusion) blood transfers for jehova’s witness : judge said he will get transfer of blood even though parents said no. Special Guardianship orders (SGO): Adoption and Children Act 2002 and the provisions are in s14A Children Act 1989

Welfare Checklist s.1(3): (a) the ascertainable wishes and feelings of the child concerned; Re P ( A minor) Education) (1992) (b) the child’s physical, emotional and educational needs; May v. May [1986] 1 FLR 325, CA. (c) the likely effect on the child of any change in his or her circumstances; S v, W (1981) 11 Fam 81, at 82, CA, per Ormrod LJ; "the status quo argument Depends for its strength wholly and entirely on whether the status quo is satisfactory or not" Re B (Residence Order: Status Quo) [1998] 1 FLR 368, CA. Re G minors ex p interim RO 1993 1FLR 910 CA) Natural family/siblings Assumption in favour of natural parent: Re KD 1988 1 All ER 577 p578). Re D (Care: Natural Parent Presumption) [1999] 1 FLR 134, CA. Re H [A child: Residence] [2003] Thorpe LJ. C v C (Minors: Custody) [1988] 2 291, CAB v B (Minors: Custody: Care Control) [1991] 1 FLR 402 Contrast -B v B (Residence Order: Restricting Applications) [1997] 1 FLR 139. (d) the child’s age, sex. Background and any characteristics of his or hers which the Ct. considers relevant; Re W (A minor)(R.O) [1992 Re B A minor Residence Order: Ex parte 1992. Re S (A Minor) (Custody) [1991] 2 FLR 388. Re A (A Minor) (Custody) [1991] 2 FLR 394 Bruxey v.Lynas [1996] 2 FLR 499, HL (Sc). HL Scots Re A (Children) 1959 UN Declaration [1998] 1 FLR 354,CA CA said here that although there was still a presumption that babies are better off with Mother,, there is no principle of presumption in favour of other children. Background: Racial and cultural background These are issues Ct. shd not ignore – as per following case, so normally a child shd be brought up by carers who share his/her racial or cultural backgrd. In Re M (S. 94) [1995[ 1 FLR 546. (e) any harm which the child has suffered or is at risk of suffering; Harm as defined in s 31 Children Act 1989. Re M and R (Child Abuse: Evidence) [1996] 2 FLR 195. Re W (Residence Order) [1999] 1 FLR 869 (mother and step-father naked all the time: no harm) Sexual orientation? C v. C ( A Minor) (Custody: Appeal) [1991] 1 FLR 223, CA. G v. F (Contact and Shared Residence: Applications for Leave) [1998] 2 FLR 799 Re G (Children) (shared RO: PR) [2005] EWCA Civ 462 – however see also HL decision: [2006] UKHL & Baroness Hale’s remarks. However, this argument ON ITS OWN is unlikely to succeed. These cases will have to be reconsidered in the light of the Human Rights Act 1998 and the European Ct. of Human Rights' ruling in Salgueiro da Silva Mouta v. Portugal [2001] 1 FCR 653, (breach of Articles 8 and 14 where sexual orientation decisive in custody decision). NOTE: CIVIL PARTNERSHIP ACT 2004, ADOPTION AND CHILDREN ACT 2002 s50 (f) how capable each of the child’s parents, and any other person in relation to whom the Ct. considers the question to be relevant, is of meeting the child’s needs; Re M (Handicapped

Child: PR) [2001] (g) the range of powers available to the Ct. under the Children Act 1989 in the proceeding in question.

Application for an Order under the CA 1989: ● Court: -Single Family Court (created in2014) Somethings are reserved for the High court. ● Who may apply: Parent or guardian, someone with a residence order, any person with leave. ● Proceedings: It can be freestanding, or made within family proceedings, or on the court’s own motion. If however, matrimonial proceedings are pending, any application must be made in those proceedings ● How is the apps made? 1. Form C2 for permission setting out the reasons for the application; and 2. form C100 giving the s. 8 order applied for, with sufficient copies for service on each respondent. 3. There is a fee payable. 4. Notice is to be served on every person with parental responsibility. 5. The applicant serves a copy of the application, together with: 6. Form 6 (endorsed with the date fixed for hearing) on each respondent. Service must take place (unless obtained abridged time for service), at least 14 days before the hearing. S/he must also serve a statement in: 7. Form c9 to prove service has taken place. 8. Respondent gets acknowledgement of service form to complete and return to the court and serve on the applicant If appeal is against the decision of the Family Proceedings court: Appeals heard in the High Court - Family Division sitting in open court Withdraw or dismiss appeal: heard by District Judge If appeal is against decision of District Judge in County Court: appeal is made to the Judge of the Court in wish the decision was made Procedure for appeal. Seminar Qs: 1- ruth and damion: (how to answer: split into 3 according to the child) a) General advice: 1- Damion, ruth and child: Damion has PR: he wants to see the child.There is a presumption that contact with both parents is best. Court will look at the welfare checklist. Child wishes: child too young // relationship parent and child:probably mother cuz child too young // status quo argument/ circumstances: not known // siblings: presumption that they should be raised together, court unlikely to split siblings (will stay with mother) // age,sex,background: Re A, Re S: presumption that babies are better off

with their mother, Re A: if there is an unbroken relationship between mother and child and u cant complain about how she treated the child, u cant give the child to the father…. Whats wrong with mum?// harm: if ure gonna allege harm u should provide proof// whos more capable of looking after the children? They’re both capable, lean slightly towards the mother. But theres nothing to suggest that hes not capable of looking after them. If Damion makes an app for a child arrangement order: Damion is likely to get contact but the mother is likely to get residence. 2- Damion, ruth and step children: not his biological children but can prove that they are “children of the family” for the purpose of the act: he’s been treating them as children of the family. This means that he does not need the court’s permission from the court to make an application for a child arrangement order. It would be beneficial if contact takes place bc they are children of the family. 3- Damion Marica and baby: He doesnt have PR. He can get it by agreement with the mother, he can apply to the courts for Parental Responsibility: the court will look at commitment, attachment and reasons (not high bar) and if granted, he can apply for s.8 child arrangement orders for residence / contact. He can have her consent to be registered on the birth certificate if she hadn’t done that already. Child is 2 months old. He can also get PRif he marries Marcia. b) Applications on Dammion’s behalf: for PR and child arrangement order for contact c) Which court the apps should be issued in and why? Single family court 2- Mr and Mrs Cretney: a) Advise Mr Cretney (black) residence and contact: The children’s welfare is paramount. The court will look at the welfare checklist in s.1(3) CA1989.: wishes of child? Too young// status quo argument: nothing imp // age: one baby: presumption that they should stay with their mothers Re A and Re S .. unbroken relationship with children// capabilities: hes living with his parents // there is a presumption that contact by both parents is beneficial// b) How would the answer differ if pauline alleged that Michael was violent towards her? the fact that he is violent: domestic violence is not a bar to contact orders L v L / Re L : the court will look into it to make sure that it is true and not just an allegations, the court will also weigh the advs(spending time with family, room for reform) and disadvs(witnessing violence) 3- Belle and Ovie: a) Advice for Ovie: they are married: they have PR for the twins (biological children) step child: he may not have PR. the child is a child of the family so he doesnt permission of the court to apply for PR. He can get it by court, agreement b) Dan: we dont know if they were married. If not, he can apply for PR: how it happens and what they take into account. Is there any harm: mom drinking. His sexual orientation argument does not stand on its own European Ct. of Human Rights' ruling in Salgueiro da Silva Mouta v. Portugal [2001] 1 FCR 653, (breach of Articles 8 and 14 where sexual orientation decisive in custody decision)..

c) Apps to be made: for PR and for child arrangement orders 1. Form C2 for permission setting out the reasons for the application; and 2. form C100 giving the s. 8 order applied for, with sufficient copies for service on each respondent. 3. There is a fee payable. 4. Notice is to be served on every person with parental responsibility. 5. The applicant serves a copy of the application, together with: 6. Form 6 (endorsed with the date fixed for hearing) on each respondent. a. Service must take place (unless obtained abridged time for service), at least 14 days before the hearing. S/he must also serve a statement in: 7. Form c9 to prove service has taken place. 8. Respondent gets acknowledgement of service form to com...