Children

The Welfare Principle must be considered by a court when making an order in regards to a child: “The childs welfare is paramount consideration” (s1 (1)).

The Statutory Checklist under section 1(3) of the Children Act 1989 the court must have regard in particular to:-

1. The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)
2. His physical, emotional and educational needs
3. The likely effect of any change in his circumstances
4. His age, sex, background and any characteristics of his which the court considers relevant
5. Any harm which he has suffered or is at risk of suffering
6. 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
7. The range of powers available to the court under this Act in the proceedings in question.

Parental Responsibility (PR): 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 (s3 (1) CA 1989). It gives the parent responsibility for taking all the important decisions in the childs life. However ‘parental authority ceases in respect of any aspect of a childs upbringing about which the child himself is sufficiently mature to make decisions for himself’ (Gillick v West Norfolk & Wisbech Area Health Authority [1986]).

Section 8 orders usually made in respect of children are:

• Residence Order: Settles with whom a child shall live. Usually with someone who has PR, but can be made to a non-parent which will automatically grant them PR for as long as the residence order is in affect (s12, CA 1989). A residence order can be made to more than one party (shared residence) where the court will specify the number of weeks and holidays the child spends with a particular parent. HOWEVER they court shall only do this where it is within the welfare of the child to do so.

• The RO provides the child cannot be known by any new surname without: (1) written consent from everyone with PR, or (2) permission from the court.
• Also where a RO is in force no one can remove the child from the UK for longer than a month without either: (1) written consent of everyone with PR, or (2) leave from the court.
• Breach of a RO is contempt of court and an offence under the Child Abduction Act 1984.

• Consent Order: Requires the person with whom the child lives to allow child to have contact with person named in the order. There is a presumption in favour of the child having contact with both parents unless there’s a good reason NOT to. Courts will look at circumstances to determine the level, frequency and duration of contact or even left as ‘reasonable contact’ to allow the parties to decide themselves. ALTHO a contact order can also be made to prevent contact with someone (Nottinghamshire County Council v P [1993]) alternatively this also be achieved by a prohibited steps order.

• Where there has been violence, the court mist consider: (1) the past and present conduct of both parties, (2) the effect of the violence on the child and the residential parent, (3) the motivation of the parent seeking contact and (4) in cases of serious domestic violence, the ability of the offending parent to recognise his past conduct and be aware of the need to change & make a genuine effort (Re K (Contact: Mothers Anxiety) (1999)).
• Violence usually establish by holding a fact finding hearing; which once decided can not be disputed.

• Prohibited Steps Order: directs that a certain step which would otherwise be exercised in PR shall not be taken by that person without the permission of the court. The prohibited action must be specified in the order. Prohibited steps order is limited to matters which come within PR.
• Specific Issue Order: gives directions in order to determine a specific question or to resolve a specific dispute over exercising PR. Usually used to settle arguments over:

• School child should attend.
• Medical treatment child is to receive.
• Religious upbringing.

The ‘no order’ presumption under s 1 (5) of the CA 1989:

“The Court shall not make any order… unless it considers that so doing would be better for the child than making no order.”