"Children are the world’s most valuable resource and its best hope for the future" - John F. Kennedy
Thankfully the law mirrors this truth through the fact that the welfare of a child is of paramount consideration in relation to deciding which orders to make (s1 Children Act 1989). This is called the Paramountcy Principle.
You might be familiar with words like “residence”, “custody” and “access” when it comes to children and the court system. The Children and Families Act 2014 updated this terminology so that the focus would be less from the adults’ point of view and more on the child’s best interests. As such, residence is now spoken of as ‘with whom a child is to live’ and access/contact as ‘with whom a child is to spend time.’
What approach does the court take when it comes to children?
The court takes the approach that both parents have an important role in a child’s life and ideally would agree as much between themselves as possible. This can be done through direct communication, mediation or through solicitors depending on what is going to work best for the family. It is important to note that any such agreement made directly, through mediation and even a written agreement through solicitors, is not legally binding. If your situation requires the certainty of a binding Order then the court process may suit best.
How does the court decide which orders to make?
Within Children Act proceedings the court has wide powers to make a range of orders as it sees fit, even if they haven’t been applied for. The court will always apply the Paramountcy Principle first. Section 1 Children Act 1989 contains a list of factors to consider which is commonly known as the ‘welfare checklist’:
- Ascertainable wishes and feelings of the child (in the light of his age and understanding)
- Physical, emotional and educational needs
- Likely effect on the child of any change in circumstances
- Age, sex, background and any characteristics the court considers relevant
- Any harm the child has suffered or is at risk of suffering
- How capable each parent (or other relevant person) is of meeting the child’s needs
- The range of powers available to the court
The court will also consider:
- The 'no delay' principle - Any delay is likely to prejudice the welfare of the child concerned
- The 'no order' principle - The court will not make an order unless to do so would be better for the child than making no order at all
Under certain circumstances it is possible to make an urgent application and ask that the court makes the order without notice to the other party.
Our experienced family lawyers can advise about the different types of orders available. Please contact Michaela Sargeant or Anthony Vingoe, complete our website enquiry form or call our offices on 01444 235232.
What is a Child Arrangements Order?
A Child Arrangements Order replaces “residence” and “contact” orders and each order is decided on the circumstances of the individual family and what is in the best interests of that particular child. A Child Arrangements Order will set out where a child is to live and who they will spend time with, whether that time is direct or indirect e.g. by way of phone calls.
What is a Prohibited Steps Order?
A Prohibited Steps Order allows the court to place a restriction on a particular aspect of parental responsibility and can prevent a parent (or other relevant adult) from doing certain activities or making certain trips with a child. You may want to apply for a prohibited steps order if you would like the court to prevent removal of a child from their school/nursery, prevent removal from their home or local area, prevent removal from the UK or prevent a change of name.
What is a Specific Issue Order?
A specific issue order allows the court to determine a particular question which arises during the exercise of parental responsibility. You may want to apply for a specific issue order if you would like the court to determine an issue such as a child’s name, medical treatment or operation, religious or non-religious education or taking a child abroad to live.
Activity Directions and Conditions
At any stage in proceedings the court may decide to make an activity direction or condition requiring a party to undertake activities to establish, maintain or improve the involvement in the life of the child. Such activities could include programmes, classes, counselling and guidance sessions or a course designed to address violent behaviour.
What is CAFCASS?
The role of the Children and Family Court Advisory and Support Service (CAFCASS) is to look after the interests of the child, inform and advise the court. When a court application is made, CAFCASS conduct background checks with the Police and Social Services to ascertain whether there are any safeguarding issues that need to be considered. The court may order CAFCASS to do a full report which will make recommendations about what action they believe is best for the child. The court will place a lot of weight on these recommendations. You can find out more about CAFCASS on their website.
Do I need to try mediation first?
The court will want to make sure that mediation has been considered first as a way to resolve issues (Children and Families Act 2014). There are some exceptions to this expectation, like where there is evidence of domestic violence, there are Child Protection concerns or with urgent applications. Mediation requires both parties to be willing to engage with the process so if this isn't the case mediation will be deemed unsuitable. It is likely when you first consult us that we will advise a mediation referral and you will need to attend a Mediation Information and Assessment Meeting (MIAM). We can give you more details about your individual circumstances at the time of consultation.
This page is intended for basic information purposes only and should not be considered substitute for obtaining your own independent legal advice. Our experienced team is on hand to advise you about the above matters and more, and tailor advice to your specific circumstances.