When a relationship ends, working out arrangements for children is sometimes one of the most sensitive aspects of the separation to resolve. When a court decides any issue relating to a child’s upbringing or the management of his or her affairs it must make the child’s welfare the paramount consideration. This is known as the welfare principle. It applies to issues affecting children irrespective of whether these arise in the context of a divorce or separation.
The principle is given overriding importance and there are some who believe this gives too much discretion to judges. But it brings flexibility to bear on what may otherwise be intractable situations. It is key to understanding how the law in children cases is applied.
The Section 8 Orders
The Children Act, 1989 was amended by the Children and Families Act, 2014. There are now the following orders available under Section 8:
- Child Arrangement Orders
- Residence Order – sets out whom the child will live with. In the past this was known as ‘custody’.
- Contact Order – indicates the person or person(s) the child can visit or have other contact with. If it is in the child’s interest, contact may be supervised.
- Prohibited Steps Order – To prevent someone – not necessarily a parent from carrying out a particular action without the court’s agreement. 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.
- 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.
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.