If issues concerning children cannot be agreed by the parents, an Application may be made to the court to determine any dispute which arises.
The Children Act 1989 as amended by the Children and Families Act 2014 provides the framework for an application to court. The court must treat the welfare for the child as paramount.
The Children Act 1989 provides a ‘welfare’ checklist that the court must consider when dealing with these types of orders. In brief the court will consider the following:-
- The ascertainable wishes and feelings of the child concerned (taking into consideration the child’s age and understanding).
- The child’s physical, emotional and educational needs.
- The likely effect of any change of circumstances on the child.
- The age, sex, background and any characteristics of the child which the court considers relevant.
- Any harm which the child has suffered or is at risk of suffering.
- The capability of the child’s parents, and any other person the court considers relevant, of meeting the child’s needs.
What is a Child Arrangement Order?
A Child Arrangement Order (CAO) under the Children and Families Act 2014 allows the court to determine the following:-
- Who a child may live, spend time or otherwise have contact with, and
- When a child is to live, spend time or otherwise have contact with any person.
Before the introduction of the Children and Families Act 2014 there were two types of court orders under the Children Act 1989 dealing with how children spent their time; Residence orders, which were used to determine which parent the child is to live; and contact orders, which determined who a child had contact with. Both of these types of orders have now been replaced by the single CAO.
Other types of Orders
In addition to the above Child Arrangement Order (CAO) a court may make supplementary or standalone orders such as:-
- Specific Issue Orders:- This enables the court to determine specific disputes between parents. For example which school a child might attend.
- Prohibited Steps Orders:- This enables the court to make an order restraining one parent from taking a particular action in relation to a child. For example, removing a child from the country.
It is important to note that neither a prohibited steps order, nor a specific issue order may be made in relation to a child over the age of 16.
Who can apply for a court order?
There are different categories of people who can apply for a section 8 Children Act 1989 court order. The following people are automatically entitled to apply to court for any order with respect of a child;-
- Any parent, guardian or special guardian of the child.
- Any person who has Parental Responsibility (PR) for the child.
- Any person who is named in the Child Arrangement Order (CAO) as a person with whom the child is to live.
Alternatively, the following people can apply to court for a CAO:-
- Any party to a marriage (regardless of subsequent divorce) where the child is a child of both parties. Including any other child who has been treated by both of those parties as a child of their family (except foster children).
- Any person with whom the child has lived with for at least 3 years.
- Local Authority foster carers who have had a child living with them for the last year.
It is important to note the above list is not exhaustive. In addition anyone, for example grandparents, may seek an order from the court (see http://www.lawsonlewis.co.uk/contact-with-grand-parents-and-others.htm). Provided they first apply to the court for leave to apply for the court order.
Who has Parental Responsibility?
A mother will automatically have Parental Responsibility (PR) for a child regardless of her marital status.
A father will automatically have PR if he was married to the mother at the time of the child’s birth.
Unmarried fathers may acquire PR in one the following ways:-
- If the father is named on the birth certificate (births registered after 1st December 2003).
- Marrying the mother of their child.
- By agreement or court order.
What is Parental Responsibility?
Parental Responsibility (PR) is defined by section 3 of the Children Act 1989 as ‘ all the rights, duties, powers, responsibilities and authority that by law a parent of a child has in relation to the child and his property.’ This includes the right to be consulted on major issues, such as educational and health questions.
The breakdown of a relationship can be extremely damaging for any child involved, but this can sometimes be avoided. We can advise you on coping strategies for parents and children. We are able to offer specialist advice in this regard and welcome the opportunity to meet with you to discuss your concerns.