When a relationship ends, working out arrangements for children is often the most complicated and sensitive area to resolve. The family courts decide any issue relating to a child’s upbringing by putting the child’s welfare first. What is in their best interest?
While there are some who believe this approach gives judges too much discretion, there’s general agreement that applying the welfare principle on a case-by-case basis brings much needed flexibility to what may otherwise be intractable situations.
The welfare principle is key to understanding how the law in children cases works in practice. Here we look at Section 8 of the Children Act, 1989 and the various orders available to the court when deciding issues concerning children.
Reducing Confrontation in Disputes About Children
Back in 2014 The Children and Families Act heralded a new approach to cases involving children in the family court. It removed contact and residence orders and replaced them with Child Arrangement Orders. This was more than a cosmetic change. It was an attempt to move away once and for all from the old idea of ‘child custody’ where one parent ‘won’ the right to look after a child.
Instead, parents are now encouraged to be less confrontational when it comes to child arrangements. While there is a legal presumption – made explicit in s11 of the Children and Families Act, 2014 – that the involvement of both parents in the child’s life will ‘further the child’s welfare’ it’s important for parents to realise that they have no right to 50/50 or other proportion of time with a child. Also, the presumption in s11 will not apply if involvement of both parents would not further the child’s welfare or would pose a risk of harm. Decisions should be based on what is right for the child. In some cases the courts have denied a parent any contact with a child – when this is the child’s interests.
The courts and relevant agencies encourage parents to reach agreements about where children should live and other matters between themselves. Compared to an order handed down by a judge, a flexible agreed Parenting Plan reached after careful consideration will often work out more effectively in practice.
If agreement isn’t possible, parents should apply for an order under Section 8 of The Children Act, 1989. Bear in mind that once a child reaches 16 they can decide for themselves where they live, unless there is an existing order in place that governs residence after they have turned 16.
What Orders Can the Court Make Under s8?
Available orders are:
- Child Arrangement Orders – these enable the court to decide who a child lives with (a ‘live with’ order), and who they should spend time with (a ‘spend time with’ order). It’s important to remember that an order specifying that a child lives with one parent does not diminish the other parent’s legal rights which stem from them having parental responsibility. The resident parent cannot for example, change the child’s school or relocate abroad without the consent of the other parent.
- Prohibited Steps Order – These orders prevent someone – not necessarily a parent – from carrying out a particular action. The prohibited action is usually one associated with the exercise of parental responsibility. For example, removing a child from the jurisdiction, having contact with a named individual, changing a child’s surname. Save for exceptional circumstances these orders can only be made in relation to a child under 16. Note that these orders are very precise in nature. Courts will always be alert to Prohibited Steps Orders being exploited by one parent as a way to regulate or reduce the time the other parent spends with a child.
- Specific Issue Order – Usually relating to education questions, medical decisions and holidays these resolve a single issue that has or may arise in respect of a child’s upbringing. Courts will expect any application to be backed up by appropriate evidence and to be given an assurance that, if the order is made, it will not negatively affect the child.
The Welfare Checklist
When deciding on section 8 orders, judges must consider the checklist set out in section 1 of the Children Act, 1989. The factors that must be taken into account are as follows:
- The wishes of the child, taking into account age and understanding
- Physical, emotional and educational needs
- The likely effect of any change in circumstances
- Age, sex, background
- Any harm which he the child has suffered or is at risk of suffering
- The capability of each parent and any other person the court considers relevant, of meeting the child’s needs
- The range of powers available to the court
Who Can Ask For A Section 8 Order?
Parents, guardians and those with parental responsibility can automatically apply for an order. Mothers have parental responsibility for their children as of right as do married fathers. Unmarried fathers, stepfathers and others can acquire responsibility if they meet certain conditions.
In addition to those with parental responsibility, anyone holding a residence order or who has the consent of someone with a residence order as well a certain other categories of individual can make an application without first asking the court for permission.
Others can apply for orders under section 8 but they must first ask the court.
What Part Does Cafcass Play?
Cafcass is the body charged with ensuring the court listens to the voice of children and works within the boundaries of the Welfare Checklist. It will only become involved in your case if the court asks it to. Cafcass will carry out safeguarding checks in all cases and make representations to the court, including outlining any concerns. Depending on your particular case it may also work on a report into your child’s welfare, ask you to take part in a mediation assessment meeting or attend separate parenting classes.