What does the Law Say?
The key piece of legislation which determines how courts approach disagreements between parents about their children is the Children Act 1989. It has been updated by subsequent Acts of Parliament, most notably the Children and Families Act 2014, but remains the most important part of the law for separated parents.
This article provides a brief overview of the legal framework which underpins the family justice system. It looks at the key principles which set out how courts approach separated families, the structure of the legal system, and the most common types of orders a court will typically make.
To find out more about the reforms to the Children Act that were brought about by the Children and Families Act 2014, please see our McKenzie Briefing.
- The paramountcy principle: The child’s welfare is the paramount consideration. All considerations other than what is considered to be in the child’s best interest are secondary.
- Delays to a case are seen to prejudice the welfare of the child. In practice though, cases in the legal system can often take a long time to resolve.
- The ‘Welfare Checklist’: A list of seven factors that the court ‘shall have regard’ to when making an order. Those preparing reports for the courts and judges themselves will often explicitly review matters, by examining each of the headings under this list. Be sure to be familiar with it.
- The ‘No Order’ principle: The court should consider whether making ‘no order’ on an application might be the preferred outcome. The family justice system is now focussed on getting parents to work together and cooperate wherever possible, so this principle has become more important in recent years. Orders will only be made where the court considers that making one is the only way to serve the child’s best interests.
- Parental responsibility: This states that parents will have equal and enduring parental responsibility for their child before and after separation. For more information on parental responsibility, and its importance, please click here.
Private and Public Family Law
The majority of the text of the Children Act 1989 addresses ‘public law’ scenarios in which local authorities’ obligations towards children are set out. The ‘private law’ element of the legislation, dealing with children who live with their parent(s) rather than under the care of a local authority, constitutes a smaller part of The Act, but is the part that principally concerns our members. A private law case between parents may become a ‘public law’ case if the judge directs a local authority to investigate and report because it is though that the child’s situation may warrant the making of supervision or care order.
Section 8 Orders
These are the most common types of orders that are applied for in private family law. They are often referred to as ‘Section 8 Orders’, as they are listed under Section 8 of the Children Act 1989.
Child Arrangement Orders
In the words of The Children and Families Act:2014 “a child arrangement order order” means an order an order regulating arrangements relating to any of the following:
(a) with whom a child is to live, spend time or otherwise have contact, and
(b) when a child is to live, spend time or otherwise have contact with any person.
Child Arrangement Orders (CAOs) replaced ‘contact’ and ‘residence’ orders in 2014, which used to determined the amount of time a child spent with a parent and who they lived with day-to-day respectively. This single order covers issues such as who the child will live with, and how their time will be split between the parents.
It is hoped that removing terms such as ‘residence’ and ‘contact’ will reduce the perception of winners and losers in family court proceedings.
Child Arrangement orders made by the court are tailored to individual circumstances. They can be brief and expressed in very general terms: e.g. the mother will allow the father ‘reasonable contact’ to the child. They can be very detailed, explicitly stating collection and return times, locations for handover, who can be present at handover, arrangements for replacement contact if contact doesn’t take place, dates of holiday contact etc – with the actual definition perhaps stretching even to a couple of pages. This, the inclusion of prescriptive details, tends to happen after previous orders, made in less detail, have proved to be unworkable since the court will initially prefer the parents themselves to agree and sort out the detail within the general boundaries set out by the court.
Within Child Arrangement Orders certain descriptions may be used: ‘Direct contact’ refers to face-to-face contact with the child, actually meeting your child, whereas ‘indirect contact’ means that contact takes places by phone, email or post. ‘Visiting contact’ describes a situation in which a child has direct contact with the parent on outings or visiting the parent’s home, but does not stay overnight. When the child sleeps overnight on a contact visit this is referred to as ‘staying contact’.
Parents making applications should be aware that where previous court forms referred to applications for residence and/or contact, these have now been replaced by applications for a Child Arrangement Order. Application documents such as the C100 have all been updated and are available via the HM Courts and Tribunal Service form finder, so if you download documents from there they will contain the correct information.
Prohibited steps orders
In the words of the Children Act: ” ‘a prohibited steps order’ means 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 the consent of the court.” A parent can be prohibited from taking any number of steps, though the most common scenario is where one parent, suspecting that the other may be planning to move abroad with the child, applies for an order that s/he be ‘prohibited from removing the child from the jurisdiction’. Others examples could be: prohibiting the parent from allowing the child to: have body/ear piercings; her hair cut (when with either parent); take part in dangerous activities; be fed food contrary to religious beliefs, and so on.
Specific issues orders
In the words of the Act: “a ‘specific issue order’ means 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.” These orders are ‘positive’ orders in that they require a parent to do or allow something rather than ‘prohibit’ a certain act. A common example is where the court is asked to determine which school a child shall attend. Other examples could be: that the child should be take part in certain religious practices; that a child should be entered for entrance exams, and so on.
Neither prohibited steps orders (PSO), nor specific issue orders (SIO) are to be used to achieve a result which could be achieved by a Child Arrangements Order. For example, rather than use a PSO to prevent the child visiting the home of an undesirable adult during contact, the conditions attached to a Child Arrangements Order should deal with this if required.
Family Assistance Orders
Family Assistance Orders (FAOs) as per s16 of The Act provided a means whereby the court could order a welfare officer to ‘advise, assist and befriend’ any person named in the order. Nowadays it is generally agreed that this provision has been underused, partly because the Children Act 1989 required that for these orders to be made the ‘circumstances of the case must be exceptional’. Following consultation, the Children and Adoption Act 2006 [s6] sought to ‘beef up’ these orders. The requirement that the case be exceptional was removed and they can now run for 12 months rather than 6 months. Additional clauses inserted into s16 of The Act specifically refer to the officer giving advice and assistance as regards establishing, improving and maintaining contact, indicating the potential for a more proactive, ongoing involvement for Cafcass officers, helping with contact following a court order – instead of simply providing a report for the court and then withdrawing. However, these can only be made when all parties named in the Order give their consent.
Before making an application to court, parents need to attend a Mediation Information and Assessment Meeting (MIAM). This meeting gives parents information about mediation, and gets them to consider whether they may be able to resolve their disagreement outside of court (click here for more information about MIAMs).
The aim is to encourage parents to resolve their disagreements without going to court wherever possible, and the Government intends to provide a range of resources to help parents work better together after separation.
Don’t forget that legal aid is available for mediation for parents that are eligible, and can cover MIAMs – see our info page on mediation for more details.
A Single Family Court
The ‘single family court’ means that in England and Wales, there is now a single network of application points for parents that need to go to Court to resolve disputes about their children.
The intention is that this will make it easier for parents to navigate the court system, and that the right level of judge will be appointed at the beginning of a case. With all levels of judge able to sit in the same building, it is hoped that delays which can occur when cases need to be transferred will be reduced.
In practical terms for parents making court applications, the effect will be that you only need to submit your court application to the Family Court in your local area, where it will then be allocated to the right level of judge in a suitable location.
Presumption of Parental Involvement
Section 11 of the Children and Families Act (the 'presumption of parental involvement') states that courts are to presume that, unless there is evidence to suggest otherwise, the involvement of both parents after separation is in the child's best interests. It is important to be aware that this does not provide an automatic ‘right’ to contact, or a guaranteed minimum time or form of contact. This Section of the Act will not come into force until Autumn 2014 - the Ministry of Justice has said that this is to 'allow time to raise awareness and understanding' of the change before it is implemented.
The Government’s intention is to spell out an expectation to parents that both should remain involved in the child’s life wherever possible, as they explained during the process of pre-legislative scrutiny - "The Government remains of the view that a legislative amendment will send an important message to parents about the valuable role which they both play in their child's life. As well as helping to promote greater understanding about the way in which court decisions are made, we believe the amendment will, in time, encourage separated parents to adopt less rigid and confrontational positions with regard to arrangements for their children."
It is still too early to tell to what degree these reforms will have an impact upon individual cases or alter the culture of family separation. The charity will continue to monitor developments, and any relevant information will be updated via our website.