Lectures 16-17 - child arrangement orders PDF

Preview

Summary

Child arrangement orders 2...

Description

FAMILY LAW 2/20/20 LECTURE 16-17: CHILD ARRANGEMENT ORDERS

What is a child arrangements order? 

Important and frequently used s8 order, introduced following CFA 2014 and replaced previous system of residence orders and contact orders



They form a ‘menu’ of private orders, along with prohibited steps and specific issue orders

Section 8(1) Children Act 1989 states that: “child arrangements order” means an order regulating arrangements relating to any of the following— (a) with whom a child is to live, spend time or otherwise have contact, and (b) when a child is to live, spend time or otherwise have contact with any person;”. 

‘custody’ and ‘access’ do not exist any more – they are child arrangements, but preexisting case law on residence and contact orders continue to apply



Difficult to apply, ‘clunky’ wording – can confer what used to be ‘contact’ and ‘residence’ – exactly the same but different wording

Family Justice Review – sought to explore how s8 orders were being made in practice 

Words ‘contact’ and ‘residence’ orders seemed quite loaded – residence orders seen as better, stronger and more significant



Residence orders statistically more likely to be given to mothers; contact orders given to fathers – did not align with equality ethos of CA



The Review proposed development of the current amendment, whereby ‘contact’ and ‘residence’ are removed and replaced with a CAO

Child arrangement orders 

Court can make any order even when not applied for -s10.1.b



Any parent, guardian or special guardian can apply for any s8 order, as of right



Following people can apply for a child arrangements order (only), as of right:

FAMILY LAW 2/20/20 LECTURE 16-17: CHILD ARRANGEMENT ORDERS



o

Any party to a marriage/CP where the child is part of the family

o

Any person in whose favour a child arrangements order is in force

o

Any person the child has lived with for 3+ years

o

Any person with consent of all the holders of parental responsibility

Anyone else may apply, but only with leave of court – s10.9, including a child who has sufficient understanding – s10.8



Orders do not last beyond the child turning 16 unless exceptional circs – s9.6



Order cannot be made if child is already 16 unless exceptional circs - s9.7

Their importance 

Butler Sloss noted in Re E (Minors) (Residence: Conditions) – decision to place the child with one parent in preference to the other gives them greater say in day-to-day arrangements...



Does not seek to confer greater authority onto the resident parent, however - In the Matter of Re G (A Child) [2008]



The previous Residence Order involved de facto Enhanced Involvement and a CA Order specifying where a child should live (rather than contact with) will invariably do the same



Children Act enshrines a ‘partnership’ ethos on the effects of conferring a CA order: o

Conferral of parental responsibility – whoever is recipient of a CAO will gain PR, unless they already have it, for the duration of CAO. If an unmarried father without PR, and it relates to living with the father, it will be conferred indefinitely, s12.1.4, or until court removes it

o

Non-exclusion of others – conferral of CAO does not destroy PR currently possessed by other parties

o

S2.6 allows for collaboration and avoids a ‘win lose’ mentality

FAMILY LAW 2/20/20 LECTURE 16-17: CHILD ARRANGEMENT ORDERS

o

No carte blanche; fettered via court order – CAO does not allow residential parent unfettered actions – along with any other person with PR, must not act incompatibly with the order – s2.8

o

Reconciliation – if parent has CAO and the other parent begins residing with them for more than 6 continuous months, this will terminate the order – s11.5

Defining the parameters of the CAO 

Modern system focuses on ‘regulating arrangements’ This means specifying in the court a named individual the child should live with May involve joint residence order – child resides with both Y and Z in same house Or an order for a child to reside with Y and Z in different houses – shared residence order Usually gives validity to current status quo Most orders statistically granted in mother’s favour, who want a court sanction on their arrangement (i.e. other parties’ challenges could represent breaching a court order)

Courts keen to confine the reach of the CAO: Re G (Minors) (Ex Parte Interim Residence Order) [1993] 1 FLR 910 – father able to obtain short term (interim) residence order after the children, without the mother’s presence in court (ex parte), after the children told him the mother has been smoking cannabis. CA said interim ex parte orders only made in exceptional circs Power to impose conditions S11.7 – order can be ‘tailored’ to fit the circumstances of the case and can involve: o

Providing directions on giving effect to the order

o

Imposing conditions on the recipient, or anyone specifically named

o

Imposing specific time period for the conditions

FAMILY LAW 2/20/20 LECTURE 16-17: CHILD ARRANGEMENT ORDERS

o 

Inserting incidental or supplemental provision as the court thinks fit

Unbridled discretion on the judge to create and craft an order for a particular scenario Examples include – geographical location (child will reside with X but only in a

specific geographical location), often requires court authorisation/written agreement from other parent to vary this arrangement. Now said to be only in exceptional circumstances - Re E (Minors) (Residence: Conditions) [1997] 3 FCR 245 – mother granted residence over former marital home with a condition that she would not remove the children to Blackpool – s11.7. CA overturned the condition, calling it an ‘unwarranted imposition upon the right of the parent to choose where s/he will live within the UK’

B v B (Residence: Condition Limiting Geographical Area) [2004] 2 FLR 979 – mother attempted to move the children to Australia twice, then tried to move from London to Newcastle, to achieve distance from the father. HC said this was an exceptional case, and imposed a condition that she lived close to the A4, M25 and A – WP invoked – remaining in London would promote contact with the father and enabled proper schooling. The mother did not have any family links etc to Newcastle Court is more likely to overturn geographical conditions on parties restricted to UK rather than preventing a party removing a child overseas. When someone is granted a child arrangements order, that immediately debars them from removing the child from the UK for a period of more than one months without written consent of all with PR, or an order of the court – s13.1.b Re H (Children) (Residence Order: Condition) [2001] 2 FLR 1277 – father required residence order after mother failed to stop drinking, this restricted his removal of the children to Northern Ireland. He argued it was permitted, and outside ambit of s13.1.b, as NI was in UK, and also that conditions under s11.7 could only be imposed in exceptional circs. CA emphasised paramountcy of child’s welfare – refused to overturn the order – may be capable of plunging the mother into alcoholism – restriction upheld. NI was found to be part of UK, however Re C (Internal Relocation) [2015] EWCA Civ 1305 – child lived in London spending time with mother and father separately. Mother wished to return to Cumbria where she is from but father sought a prevention order. CA permitted the move as it was not an exceptional case, and it was also held to be in the child’s best interest to move. Stronger welfare angle.

FAMILY LAW 2/20/20 LECTURE 16-17: CHILD ARRANGEMENT ORDERS

Condition may be imposed in the order enabling the child to live with R but excluding thirdparty residing with them, usually where R has a new partner. Re D (Minors) (Residence: Conditions) [1996] 2 FCR 820 – R’s new partner had been violent, breached non-molestation order and stabbed the child’s father – residence had been granted to the mother with a condition imposed that she must not allow contact with the new partner, or allow him to reside at the address. CA struck it out – court not in a position to overrule the right to live her life as she chose – should have considered whether the current situation, with her living with her partner, was the best for the children, or whether they should instead live with their father or their grandmother Child arrangements orders for different households 

S11.4 enabled a residence order to be made in favour of 2 people, even though they did not physically live together – it may specify the periods during which the child is to live in the different households – known as a shared residence order



Re F (Shared Residence Order) – residence split between Hampshire and Edinburgh – ‘alternating residence’



S11.4 repealed by CFA 2014 – it is impossible to make a shared residence order, but can make a CAO that enables the child to live with both parents separately – no need to specify a percentage of time to be spent in each household



Before CA, courts disliked shared residence arrangements and were reluctant to make/sanction them – Riley v Riley – shared residence agreement worked well for 5 years, but then there was a dispute over where the child should live – May LJ said it is ‘prima facie wrong’ to keep a young child going backwards and forwards weekly between the parents



S11.4 originally being included into the CA implicitly suggested the courts could make shared residence orders, but the dominance of Riley continued

Court can make an order in exceptional/unusual circumstance 

Re H (1994) (A Minor) (Shared Residence) – wording of CA allowed shared residence order to be made, but Cazlet J – should not be made in ‘normal conventional circumstances’ where parents separate, usually it will be necessary for

FAMILY LAW 2/20/20 LECTURE 16-17: CHILD ARRANGEMENT ORDERS

the child to live with one parent; there should be a residence order for one parent, and a contact order for the other 

A v A (Minors) (Shared Residence Order) – mere terminology shift from exceptional circumstances – a shared residence order is an unusual order, should only be made in unusual circumstances – Butler Sloss

No Statutory Restriction on Making a Shared Residence Order 

D v D (Shared Residence Order) [2001] 1 FLR 495 signalled a new approach stating that the courts should not put a gloss on the statute by either saying that these orders were only to be used in exceptional circumstances or that they had to confer a tangible benefit. As Hale LJ stated that if:

‘…it is either planned or has turned out that the children are spending substantial amounts of their time with each of their parents then…it may be an entirely appropriate order to make’ Reflect Reality Later cases no longer shunned the shared residence order but utilised it if it would reflect the realities of care and contact. 

Re A (Children) (Shared Residence) [2003] 3 FCR 656 stated:

‘the judge should have given the greatest weight to ensuring that the order duly reflected the realities, unless there were some counterbalancing welfare consideration that prevented that sensible outcome’ 

Re P (Shared Residence Order) [2006] 2 FLR 347 gave a positive statement of support for a shared residence order. Wall LJ stated

‘a shared residence order is most apt to describe what is actually happening on the ground; and secondly that good reasons are required if a shared residence is not to be made.’ The Long-Awaited Endorsement by the House of Lords



Holmes-Moorhouse v Richmond-upon-Thames London Borough Council [2009] UKHL 7 stated, per Lord Hoffmann, that: ‘Shared residence orders are not nowadays unusual. They do not necessarily provide for the children to spend equal time with each parent.’

FAMILY LAW 2/20/20 LECTURE 16-17: CHILD ARRANGEMENT ORDERS

But note Baroness Hale’s plea for the wishes of the child to play a significant role in these cases because they are the ones that will have to divide their time between two homes. Innovative use of a shared residence order 

T v T – CA decision: Lesbian couple used a gay sperm donor, who they knew personally and got on well with, do provide them with a child. Because of the familiarity the man had with the child and the couple, it was not a case of an anonymous donor. It was agreed that a shared agreement could be in place where the child was to be brought up by, and reside with, the couple, but was permitted to live with the father for a period of time. This was to ratify the idea that it was a collaborative parental relationship and that the father genuinely wanted involvement in the child’s upbringing



Later observations, especially by Black LJ, that is must be right within the situation for this to arise – would only be suitable to enforce this where there is a very strong relationship. Even acrimonious relationships can result in litigation where it goes wrong.

Summary Exceptional/unusual circumstances – Re H; A v A – shift from ‘exceptional’ circs to ‘unusual’, but does not make it clear when this would be satisfied No statutory restriction – D v D – must not place judicial gloss on the statute (B. Hale) – the words ‘exceptional’ and ‘unusual’ do not appear anywhere in the statute – should focus on WP Reflect reality – Re P No longer unusual – Holmes Moorhouse – should be for the parties/their practitioners to negotiate a shared agreement between them – facilitating (to a degree) collaborative parenting Shared Residence may also be Granted in Traditionally Atypical Scenarios 

See T v T [2010] EWCA Civ 1366 where a shared residence order was awarded to a father who had donated sperm to a lesbian couple. However, note the warning made by Black LJ that the facts must be right as where the situation is acrimonious, an

FAMILY LAW 2/20/20 LECTURE 16-17: CHILD ARRANGEMENT ORDERS

order permitting alternating residence may be a ‘battleground’ for adults (see similar comments by Hughes LJ in Re R [2012] EWCA Civ 1326....