Private law orders the courts issue to protect children

General Principles under the Children Act 1989 

Section 1 of the Act contains 3 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 ‘welfare principle’, ‘paramountcy’, or ‘best interests’ principle

s 1(1)  ‘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.’

The avoidance of delay

  • s 1(2) ‘In any proceedings in which any question in respect to the upbringing of a child arises, 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.’ 
  • s 11(1) – where court is considering making a section 8 order, or any question relating to a section 8 order,  it shall ‘draw up a timetable with a view to determining the question without delay’, and give direction to try to ensure that the timetable is adhered to.

The ‘no order’ principle

  • s 1(5)  ‘Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it 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.’

Section 8 Orders

Where this is a dispute between individuals concerning the upbringing of a child, section 8 of the Children Act 1989 contains a range of orders which can be made, namely, residence orders, contact orders, prohibited steps orders, and specific issue orders.

The general principles contained in section 1 of the Act apply in all cases concerning the upbringing of a child. The welfare checklist must be considered where the making of a section 8 order is opposed s1(4).

Residence Orders

  • s 8(1) – “an order settling the arrangements to be made as to the person with whom a child is to live”. 
  • s 12(1) – where the order is in favour of an unmarried father without parental responsibility the court shall also make an order under section 4 giving him that responsibility.
  • s 12(2) – where the order is in favour of a person who is not the parent or guardian of the child that person shall have parental responsibility for the child while the order is in force.
  • s 13 –    where a residence order is in force no person may change the child’s surname or    remove the child from the UK for more than one month without the consent of every person with parental responsibility or the leave of the court.
  • s 11(7) – the court may attach conditions to any section 8 order:  any condition must be enforceable
  • s 91(10) – residence orders last until child reaches 18.

Shared residence

s 11(4) – a residence order may be made in favour of more than one person and the “order may specify the periods during which the child is to live in the different households concerned”.

Contact Orders

  • s 8(1) – a contact order requires “the person with whom the child lives or is to live to allow the child to visit or stay with the person named in the order or for that person and the child otherwise to have contact with each other”.
  • s 11(7) – the court may attach conditions.
  • s 9(6) contact orders last until child reaches 16 except in ‘exceptional circumstances’.
  • Contact may be direct or indirect

Courts’ approach to contact

  • Where possible a child should know his estranged parent unless there are cogent reasons for denying contact.
  • No court should deprive a child of contact unless wholly satisfied that it is in the interests of the child that contact should cease and that is a conclusion at which a court should be extremely slow to arrive.
  • It is the normal assumption that a child would benefit from continued contact with a natural parent.
  • Evidence of abuse will not necessarily preclude contact if it can be arranged safely

Prohibited Steps Orders

  • s 8(1) – “an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without consent to the court.”

  • s 9(6) prohibited steps orders last until child reaches 16 except in ‘exceptional circumstances’ 

Specific Issue Orders

  • s 8(1) – “an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.” 

  • s 9(6) specific issue orders last until child reaches 16 except in ‘exceptional circumstances’