What the courts can do
Where the parents’ relationship breaks down and they cannot agree who a child should live with, or what contact one parent should have, or there is disagreement over other issues relating to any children, an application to court may need to be made.
When the court is asked to make an order, it will be guided by the provisions of the Children Act 1989 which sets out what orders can be made.
What are the general principles of the Children Act 1989?
Section 1 of the Children Act (CA) sets out three general principles:
- The welfare of the child is paramount;
- Delay is likely to prejudice the welfare of the child;
- The court shall not make an order unless to do so would be better for the child than making no order (the ‘no order’ principle).
How important is the ‘welfare principle’?
The welfare principle under Section 1 is the overarching principle that applies to all proceedings under the CA. The CA states that “when a court determines any question with respect to the upbringing of a child; or the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration”.
Avoiding delay is important in relation to the welfare principle. The CA states that “the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child”.
The ‘no order’ principle is that “the court … shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all”.
In applying the welfare principle, the court will consider a checklist of factors set out in the CA, including:
- The child’s wishes and feelings: the older the child, the greater the weight given to them;
- Their physical, emotional and educational needs;
- The likely effect on the child of any change in their circumstances;
- The age, sex, background and characteristics of the child which the court thinks is relevant;
- Any harm the child has suffered or is at risk of suffering;
- How capable the child’s parents are in meeting the child’s needs.
Given that the welfare of the child is paramount, what orders are available to the courts when a parent makes an application under the CA?
Section 8 orders
Section 8 of the CA sets out a range of orders which the court can make. These are residence orders, contact orders, prohibited steps orders, and specific issue orders. The court can make any of these orders regardless of any specific order/s requested to be made by the parent in their application.
A residence order under Section 8 is an order settling the arrangements to be made as to the person with whom a child is to live. Residence orders normally last until the child reaches 18 years of age. If an order is made in favour of an unmarried father without parental responsibility, the court will also make an order giving him parental responsibility.
In situations where a residence order is made in favour of a person who is not the parent or guardian of the child, such as a grandparent, that person will have parental responsibility for the child for the duration of the order.
Note that while a residence order is in force, no one can change the child’s surname, or remove the child from the UK for more than a month, without the consent of every person with parental responsibility (or the leave of the court).
An order for shared residence is possible, and may be made in favour of more than one person – specifying the periods during which the child is to live in the different households.
A contact order sets out visitation rights of the party with whom the child is not resident. It will set out the contact (direct or indirect) the child can have with the other parent, such as when they can stay and for how long; where they can meet; phone and skype contact, and other types of indirect contact. The court can attach conditions to a contact order; for instance, if contact is obstructed by the other party, a fine can be imposed.
In deciding whether or not to make a contact order, the court‘s approach is that a child should have contact with the other parent unless there are good reasons not to allow it, such as a real risk of physical or emotional harm. It is the normal presumption that a child would benefit from continued contact with a natural parent.
Prohibited steps orders
Under the CA, the court can make an order preventing a parent from doing something that they would normally be legally permitted to by virtue of their parental responsibility. Prohibited steps orders last until the child reaches the age of 16 except in ‘exceptional circumstances’
Specific issue orders
Conversely, a specific issues order is an order directing a parent to take specific action, or course of action. For example, registering a child at a specific school, what religion the child should be brought up in, and so on. A specific issue order lasts until the child reaches the age of 16 except in ‘exceptional circumstances’.