The nature of the orders and their practical application
Prohibited steps orders (PSOs) and Specific issue orders (SIOs) are two types of orders available to regulate and resolve disputes between parents of a child or others with Parental Responsibility (PR) in relation to his or her upbringing.
Since the parties have PR they have a say in making decisions regarding the upbringing of the child. Further, the important decisions cannot be made by a person alone and the parties have to consult each other in order to reach an agreement. However, situations where no solution is suitable to both parties often arise. The orders arise following such disputes between both parents and/or persons with parental responsibility about a specific matter regarding the child in issue.
The use of the orders in practice
Whenever such issues arise, the courts can resolve the matter through either types of orders. In reality problems are often seen for example because there is a dispute over the child’s religion, school, extracurricular activities, surname etc.
In practice, the majority of prohibited steps orders regard issues concerning the change of the child’s surname. In relation to that change, the law provides that where a residence order or a care order is in place the surname cannot be changed without the written consent of every person having PR or the leave of the court. Therefore, following a disagreement between the parties, the courts approval is often sought.
Further areas of disputes commonly regulated by PSO include orders prohibiting contact with a specific person or a ruling for the child not to undergo certain medical procedure.
In relation to SIOs, an area that has caused difficulties to the courts is the possible requirement for a parent to reside at a specific address. The judicial consideration provides that such requirement could often be seen as interfering unjustifiably with the ordinary rights of the resident parent. Further, the imposition of conditions on a residence order restricting the primary carer’s right to choose his or her place of residence should be seen as exceptional and is only used in such circumstances.
The effect of the orders
A PSO effectively prevents a parent with parental responsibility or a third party from taking any step which is specified in the body of the order without the prior consent of the court.
On the other hand a SIO allows the court to intervene into private relationships and resolve disputes in favour of particular course of action. Therefore, SIOs allow for something to be done, while PSOs are used to prohibit a specific course of action. In that sense the orders are used to regulate the exercise of parental rights and duties by opposite courses of action.
The application process and the courts
All applications are normally made on notice to the respondent. Applications for both types of orders made without notice are possible. However, when the matter is to be considered in the magistrates’ courts, this could only be achieved by firstly obtaining the leave of justice’s clerk.
Whenever such orders are considered in court, no court may make a prohibited steps or a specific issue order if the result envisaged could be achieved by making a residence or contact order. Therefore, the courts are required to look into the need for the order and the purpose it will serve. Then they must consider whether the same effect could be achieved through other section 8 orders.
In addition, no order could be made in any way which is denied to the High Court in the exercise of its inherent jurisdiction in respect of children.
Further, the court may not make any of those orders if it would effectively place the child to be accommodated by or on behalf of the local authority or if it would confer power on a local authority to determine any issue on parental responsibility which has arisen or may arise.
The content of the order
An order granted by the court may contain directions about how it is to be carried out. It may impose conditions on the parents or other persons. Further, it could specify when it is to come into effect and how long it is to last for. In addition, the wide powers of the courts allow for provisions to also be included as the court thinks fit in accordance with all the facts of the case.
Duration of the order
It is possible for an order to specify within itself a time period during which it shall apply.
The making of a care order in respect to a child who is the subject of a specific issue order or a prohibited steps order will automatically discharge the order.
Further, those orders will automatically end after the child has reached the age of 16 unless the court is satisfied that the circumstances of the case are exceptional and require for the order to remain in effect.