S8 orders family law PDF

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Section 8 orders under Family Law. ...

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Private Orders Important note The main act to which we shall refer is the Children Act 1989 (CA). However, this has recently been amended by the Children and Families Act 2014 (CAF), which received the Royal Assent in April 2014. We will mainly focus on section 8 CA AS AMENDED BY section 12 of the new Act which replaces contact and residence orders, which were originally in section 8, with a new order called the child arrangement order. This new order regulates the arrangements relating to with whom a child is to live, spend time or otherwise have contact and when a child is to live, spend time or otherwise have contact with any person. The introduction of section 12 has necessitated a number of consequential amendments to the Children Act 1989 (and other legislation) replacing references to contact and residence orders with new wording reflecting the child arrangement order(CAO). In addition section 1(2A) CA (as amended by section 11 of the Children and Families Act 2014) introduces a presumption that parental involvement will further the welfare of the child concerned when the court is making an order under section 8 of the Children Act 1989 or an order for parental responsibility, section 4 of the Children Act 1989. Introduction to the Children Act 1989

The Children Act 1989 (CA) is the central piece of legislation governing child law. There have been a number of subsequent amendments and additions to the 1989 Act - most recently the Children and Families Act 2014. At the outset it is important to make the distinction between public and private law children matters. Private law deals with disputes between individuals concerning children - whereas public law deals with the intervention of the state (acting through Local Authority children’s services) where a child is in need or is suffering or is at risk of significant harm. This section of the syllabus will focus on private law – we shall consider public law issues later on.

Private law orders Section 8 CA 1989 - as amended by section 12 CAF2014 -contains orders (referred to as “section 8 orders”) whose purpose is to deal flexibly with practical issues concerning a child’s upbringing. The orders in section 8 are defined as follows: 1. “Child arrangements order” means an order regulating arrangements relating to any of the following(a) With whom a child is to live, spend time with or otherwise have contact, and

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(b) When a child is to live, spend time or otherwise have contact with any person 2. “ 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

3. “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.

Section 9 (5) CA 1989 provides that – No court shall exercise its powers to make a specific issue or prohibited steps order(a) With a view to achieving a result which could be achieved by making a child arrangements order… This provision ensures that the effect of a child arrangements order is not achieved via the “back door” by using a specific issue or prohibited steps order.

Public law orders – are found in Parts IV and V of the Act - they relate to action normally taken by the Local Authority children’s services and include: 

care or supervision orders (CO) (SO)

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emergency protection orders(EPO)

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child assessment orders

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(education) supervision orders

NB: s37 Children Act 1989 - provides a “jurisdictional bridge” between private law proceedings under Part II of the Act (in which the Local Authority usually plays no part ) and the public law provisions of Part IV and V. Under s37 the court in private proceedings can direct Local Authority children’s services to investigate the child’s circumstances. Where the court directs that a report is to be provided by the Local Authority, under s37, a limited jurisdiction is established under s38 under which, depending on the facts of the case, the court may make an interim care or supervision order. (see later Children at Risk notes)

The private orders referred to in s8 Children Act 1989 (CA) can be obtained in a) An application in the course of family proceedings b) The court’s own motion in such proceedings; c) A free standing application in the absence of any proceedings.

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Application for s8 order will usually be in family proceedings - situations where parents cannot reach agreement about the children.

Child arrangements order Introduced by section 12 of the CAF Act 2014 with the aim of moving away from the rigid approach of a resident and non-resident parent on separation which could create hostility and tension and to allow greater flexibility in looking at the arrangements for the child’s welfare. Since the CA 1989 case law has developed in relation to residence and contact orders. This case law is still relevant. A residence order - “an order settling the arrangements to be made as to the person with whom a child is to live”. A contact order - “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 “. It could be argued that the change to a “child arrangements order” is a matter of words not substance. It certainly makes orders more difficult to draft compared with when the easy terms of “residence” and “contact” can be used. No parent with Parental Responsibility (PR) will ever lose PR even if they do not have a child arrangement order. 

If a child arrangements order is made in favour of the child’s father, or a parent under section 43 of HFEA 2008 (see Parental Responsibility materials) section 12 (1) CA provides that the CAO be accompanied by a PRO in that person’s favour (under section 4 for the father or section 4ZA for the other woman.)

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Note also section 12 (1A) - where a CAO is made detailing the “spend time” arrangements (contact) for a parent and child, but the child does not live with that parent, the court has discretion to make a PRO. If it does give the father or other woman PR then ss4 or 4ZA as above apply.

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In sections 12 (1) the PRO cannot be revoked during the CAO and the PRO will remain in force even after the discharge of the CAO – section 12 (4) CA

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Non parents, who obtain a CAO determining with whom a child shall live (residence), will get restricted PR although they cannot consent to adoption or appoint a guardian sections 12(2), &12(2A). PR in this situation will last for the duration of the CAO (residence). Giving directions and imposing conditions on section 8 orders. s11(7) the court may add conditions or provisions to the order which go beyond stating where the child will live. The aim of this provision is to confer wide powers on the court to make orders which will be effective. But section 11(7) supplements section 8 it does not entitle the court

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to give directions and impose conditions which fall outside the scope of the main order. Any condition can not affect fundamental rights of a parent – see below - trying to limit mother’s right to choose where to live. Re E (Residence: Imposition of conditions) [1997] 2FLR 638 -

To a particular geographical area. A residence order cannot be unaccompanied by an order as to where a parent with care must live in the UK or with whom.

See also B v B (Residence: Condition Limiting Geographical Area) [2004] 2FLR 979 -

Radical need for relocation. Illustrates that the motive for relocation and the willingness of the residential parent to facilitate the contact after the move.

Section 11(7) does not permit the court to attach conditions which have the effect of interfering with a clear right of occupation of property - nor can a condition prohibit the child being brought into contact with the parent’s partner. See Re D (Residence: Imposition of Conditions) [1996] 2 FLR 281 -

Children will return to the mother with the condition that the children will have no contact with the mother’s partner who should also not live with them. Condition was removed by the Court of Appeal.

Ward LJ explained that: “the case concerned a mother seeking, as she was entitled to, to allow this man back into her life because that this the way she wished to live it. The court was not in a position so to override her right to live her life as she chose. What was before the court was whether, if she chose to have him back, the proper person with whom the children should reside was herself or whether it would be better for the children that they lived with their father or with the grandmother. Child arrangements orders dealing with a child’s residence. Following relationship breakdown and the parents no longer live together, if there is disagreement about the child’s living arrangements the court may make a child arrangements order under section 8. Either parent may apply for an order and indeed other parties may seek a child arrangements order (e.g. grandparents) – see later on who may apply. Prior to the Children and Families Act 2014 such disputes would be resolved by the court making a Residence order. Case law established under the old order is still relevant in assisting the court to determine the most appropriate child arrangements order.

Every case will turn on its own facts and courts will apply section 1(1) CA 1989 (the Welfare Principle) and the factors in section 1(3) – the welfare checklist, together with s1(2) (no delay principle) and s1(5) (no order principle). Please refer to the separate materials on the Welfare Principle.

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Child arrangements order - shared residence Prior to CAF 2014 s11(4) - residence orders can be made in favour of more than one person even if those persons do not live together. The order may specify the time to be spent with each person. The aim of this section was to encourage a flexible approach for the benefit of the child, although they were never intended to be a common form of order. Most children still needed the stability of a single home and those parents who were open to shared residence would be less likely to need the court to make an order in the first place. S11(4) has now been repealed by CAF 2014. The option of a child living in different households is accommodated within the definition of a child arrangement order. Therefore the reality of “shared residence “still exists. Case law on shared residence pre CAF 2014 is still relevant in determining whether shared arrangements are in the child’s best interests. Note the comments of Sir Mark Potter in Re A (Joint Residence: Parental Responsibility) [2008] EWCA CIV 867 [2008] 2 FLR 1593, CA 3 possible bases for shared residence: 

To provide legal confirmation of the factual reality of the child’s life

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A means to confer parental responsibility(PR) on an individual who would otherwise not be able to apply for a free standing PR order

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Where it may be psychologically beneficial to the parents in emphasizing the equality of their position and responsibilities.

Riley v Riley [1986] FLR 249 – at one time there was a requirement that there should be exceptional circumstances before a shared residence order would be made. In D v D (Shared Residence Orders) [2001] 1 FLR 495 the Court of Appeal approved the move away from the exceptional circumstances requirement , showing a more relaxed approach to shared residence – such an order should be in the child’s interests with the focus really on s1(1).

The father had been awarded shared residence for three children. He asked the local authority to provide appropriate housing. Could not rely on the shared residence order to get housing. See now also - Holmes – Moorhouse v Richmond –Upon –Thames LBC [2009] 1 FLR 904

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Very persuasive. Particular significance in family law. Supreme court case involving Baroness Hale: only female member of the supreme court. Concerned the impact of a shared residence order in relation to the local authorities housing orders.

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General guidance on deciding whether appropriate for “shared residence “ Baroness Hale “ the paramountcy principle in section 1 (1) CA1989 means that the court’s focus is the children…the court must choose from the available options which will be the best future for the child not the best future for the adults .” A v A (Minors) (Shared Residence) [1994] 1 FLR 669 Proposed arrangements must be clear and not likely to cause the child confusion. Cases which consider situation where parents not capable of working together or where one parent attempts to marginalise the other Re G (Children) (Residence: Same-Sex Partner) [2006] 2 FLR 629 and A v A (Shared Residence) [ 2004] 1FLR 1195 -

If parents are unable to work together, this is not a reason to decline making a shared residence order, but it is neither a reason to aid to making a shared residence order.

Presumption of shared residence? Not defined in law, despite arguments for an equal division of parenting time. Effect of a Child arrangements order (CAO) The legal consequences of a CAO in which a person is named as a person with whom the child is to live are: 

It confers PR on persons who would not otherwise have it – section 12 (2)

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It diminishes but not extinguishes the existing PR of the non –residential parent Therefore: (i)

PR can’t be exercised in a way which is incompatible with the CAO – section 2(8) CA1989

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Person who has CAO (residence) may take child outside UK for less than one month (without need to obtain consent of all with PR) - section 13 CA 1989

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Appointment of guardian does not take effect when there is a surviving parent with PR unless the deceased parent has a CAO(residence) – section 5 (7) CA1989

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Normal rule that consent of each parent with PR to marriage of child aged under 18 is abrogated when a CAO is in force – only consent of person who has “residence” is needed –section s3 Marriage Act 1949

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(v)

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Where CAO and residential parent wants child to be voluntarily accommodated the Local Authority may proceed to accommodate against the wishes of the non- resident parent –section 20(7) CA1989 It discharges any existing care order- section 91(1) CA 1989 provides CAO discharges a care order.

Child arrangement orders concerning contact. The court may make a CAO where there is a dispute concerning contact in principle and or the nature and frequency of contact with the child. (Previously known as a contact order under section 8 CA.) Practitioners tend to call this the “spend time” arrangements now. Contact is wider than just seeing the parent. A CAO (contact/spend time) order can be made in relation to anyone the court deems appropriate and therefore may be made in favour of siblings/other relatives- see later. CAO contact/spend time can be face to face (direct contact), and include staying contact (overnight). In addition it may include indirect contact (phone, email skype etc.) s11(7) - the court may attach conditions or directions regarding contact/spend time provisions in a CAO. General approach and existing caselaw: Re B (A Minor) (Contact: Stepfather’s opposition) [1997] 2FLR579 - general policy is that “contact should be maintained wherever this is practical” but this does NOT mean an automatic right to contact. However, note s 11 CAF 2014 inserts a new provision into s 1 CA – s1(2A) – the court is to presume (unless the contrary is shown) that involvement of that parent in the life of the child concerned will further the child’s welfare. S1(2B) defines “involvement” to be some kind of either direct or indirect involvement but does NOT provide any particular division of the child’s time. Consider this provision – it applies where the court is making or revoking a PRO or making varying or discharging a contested section 8 order in favour of a parent.

Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124- Bingham MR A welfare officer was appointed who did not support the father for direct contact. The court made an order an attached directions and conditions. The mother argued that the court had no authority to impose such conditions. Implacable hostility- one parent alleging of the other and they are being so difficult that it is impossible for them to see their child. Summary of principles that apply in contact cases;

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Facts: parents separated and never married. They were founded allegations of domestic violence and the father was subject to non-molestation order. He sought contact with the child and the mother refused. There were two direct orders made that the mother ignored. The father then applied to the court to have the mother committed for breach of an order. In Re L (Contact: Transsexual Applicant) [1995] 2 FLR 438

Contact in cases involving domestic violence. Where the mother is hostile to the contact it will depend on whether her hostility is justified. Re L (A Child) (Contact: Domestic Violence) [2000] 2 FCR 404 Where the child is adopted different considerations may apply. Re S (Contact: Application by Sibling) [1998] 2 FLR 897 Contact and same sex families –role of father in where parents are lesbian couple A v B and C (Lesbian Co –parents: Role of Father) [2012] EWCA Civ285;[2012] 2 FLR 607 Case involved a “donor” father seeking a fuller relationship with his son, contrary to the wishes of the child’s biological mother and her female partner. Court rejected the mother’s argument that the outcome should be dictated by the pre-conception agreement Held: What was pivotal was what was in the child’s welfare interests , the court should not give too much weight to any pre-conception agreement, which whilst a relevant factor, was not the paramount consideration. Approach adopted in A v B and C tested and by subsequent case of Re G; Re Z [2013] EWHC 134 (Fam).

There must be compelling reasons why contact should not be allowed. Wherever possible the child should have contact with each parent (this is now supported by s1(2A).

Re C (Contact; No Order for Contact) Fam Law [2000] 699

Note Re R (IVF: Paternity of Child) [2005] 2 FLR 843 Enforcement of Child Arrangement Orders Complex and difficult to enforce – concern how courts can effectively enforce.

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New measures enacted in Children and Adoption Act 2006- introduced the provisions of contact enforcement provisions - including section 16 (A) and section 11 A-P Children Act 1989 in an attempt to improve the effectiveness and enforcement of contact orders. Section 16 provides court with power to make a family assistance order in any family proceedings. Intended to provide “ focused short term help to a family to overcome the problems and conflict associated with their parents’ separation.” Children’s services or CAFCASS officer to work with the family. Limitation is that it requires the consent of everyone named in the order (except children) e.g. parents. Section 11 Key provisions 11A - provides for contact activity directions and conditions. 11G – provides for monitoring contact and residence arrangements. 11J –provides for enforcement of contact provisions within CAO There have been very few reported decisions on these provisions but see; Re L-W (Enforcement and Committal: Contact) [2010] EWCA Civ1253; [2011] 1FLR Here the court stated that you must first determine whether has been an actual breach not just whether contact has tak...