Family Law

13.03.2012

Lesson Objectives

All learners will:Be able to list the orders available under s.8

Children Act 1989.Most Learners will:Be able to define 2 orders.Some learners will:Be able to list cases with regard to the 2 orders.

The orders available under s.8

Section.8 lists four orders that can be made, together with directions as to how the order is to be carried out. The court has wide powers to impose conditions on the person in whose favour the order is granted and to specify the period for which the order, or any provisions contained in that order, will have effect.

Residence Order

Definition: An order settling the arrangements to be made to the person with whom a child is to live.

The making of a residence order does not affect the joint PR of the child’s married parents and the court will try to ensure that the child’s relationship with both parents suffers as little as possible.

The effect of a residence order is to determine where the child should live, but it also has the following effects:

(1) A residence order can be in favour of someone who is not a parent; and confer PR.

(2) It does not confer full parental powers on a non-parent; such a person, cannot, for example, consent to adoption or appoint a guardian.

(3) The court may attach detailed conditions to the residence order, for example, conditions that the child should not be removed from the resident parents, that the child should not change schools, or that the child should not be allowed to see a particular friend of the resident parent.

Residence order (3) cont’d

B v B (Residence: conditions limiting the geographical area) [2004], the court imposed a condition on a residence order granted to the mother requiring her to live within a defined area around the M25. The court recognised that this was an unusual condition and would not normally be imposed but considered it appropriate in this case.

The child had lived with the mother in the specified area for some time and the mother’s plans to move to the north of England were very vague. The court considered that the mother was simply trying to frustrate the father’s contact with the child. Similar concerns justified imposing a condition in ETS v BT [2009].

Residence order (4)

The residence order prevents anyone from changing the child’s surname or removing him from the UK for more than a month without the written consent of every person with parental responsibility; or the permission of the court. Such issues are frequently dealt with as a condition attached to the order.

Where a child’s surname is that of his father, it is usually seen as a vital connection with his father and the court will not readily permit a change, even to that of the resident’s mothers new married name, unless convinced that the change would promote the child’s welfare (Dawson v Wearmouth [1999]).

Residence OrderThe principles that apply on an application for permanent removal from the jurisdiction are now well established. The application is usually made by a resident mother who wishes to go abroad to be with her family or a new partner. She must first establish that her wish is genuine (i.e. Not motivated by a desire to break the child’s contact with the father) and practical (i.e. Plans for residence and schooling are in place and consideration has been given to contact arrangements.

The court will then consider whether the other parent’s opposition is based on genuine concern for the child or a desire to frustrate the other parent’s plans. If neither parent is driven by ulterior motives, the court will consider whether the move is in the best interests of the child.

Residence Order

It is possible for persons other than the parents to apply for a residence order, and there is no presumption that a residence order should be made in favour of a biological parent.

However, in Re G (Children) (2006) the HL reversed the decision of the lower courts to transfer residence to the mother’s lesbian ex-partner on the basis that they had failed to attach sufficient weight to the biological link between the mother and her children.

Residence Order

However, the welfare of the child still remains paramount consideration. In Re B (a child) (2009) the Supreme Court held that a boy of 3 should remain with the grandmother with whom he had lived since birth rather than moving to live with his father. In so holding, it reinstated the decision of the Family Proceedings Court, on the basis that its decision could not be characterised as plainly wrong and that there had therefore been no basis for interference.

Residence Order

A residence order may be made in favour of two people who are living apart. It will usually specify how long the child should stay at each residence. A residence order made in favour of two parents living apart will cease to have effect if the parents live together for a continuous period of 6 months.

The courts have become increasingly willing to make shared residence orders. In D v D [2001] it was suggested that shared residence order could be made where it reflected the reality of the children’s lives. In subsequent cases the interpretation of what constitutes ‘underling reality’ has encompassed the fact that both parents retain PR, as well as the most obvious one that children divide their time between the parent’s households.

Contact Order

Definition: This is an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with a person named on the order, or for that person and the child to have contact with each other. Other forms of contact include writing letters, making telephone calls or receiving information on the child’s progress.

Contact Order

Contact orders can be made in favour of anyone, not just parents or relatives, although under s.10 CA 1989, the consent of the parents or of the court would generally be required before making an application. Conditions may be attached to contact orders and the court has the wide discretion as to the nature of such conditions. During contact visits, a parent who has PR can exercise it more freely than at times when the child is not with him, although he must still act compatibly with any other court order relating to the child.

Contact Order

The courts are usually reluctant to deprive a parent of all contact with his child, even if there has been a long break. For example. Re H (Minors) (Access) 1992, the father had lost contact with his children for three years, partly owing to the mothers lack of co-operation and partly because she had remarried and moved away. The CA granted an order for a gradual resumption of contact, with the position to be reviewed in the near future.

Contact Order

Contact orders can be problematic where there is background of domestic violence and a review of the law followed in four conjoined appeals: Re L, Re V, Re M, Re H (Contact: Domestic Violence [2000]. The approach of the courts is that although there is no resumption (continuation) against contact in cases where domestic violence was alleged, violence is a highly material factor that the court is required to consider as part of the balancing exercise required by the court’s duty to apply the paramountcy principle and the welfare checklist.

Contact Order

A court hearing a contact application in which allegations of domestic violence are made should consider the conduct of each party towards the other and towards the child, the effect on the child and mother and the motivation of the father seeking contact.

New guidance emphasises that any allegations of domestic violence must be investigated and finding of facts made and that the court should only make an order for contact if the safety of both the child and the parent with whom the child is living with can be guaranteed.

Contact Order

Unless the child is at risk from the non resident parent, the assumption that contact is beneficial will override, and contact will be ordered. The CA has emphasised that imprisonment would be an appropriate sanction in cases where there had been clear, repeated and deliberate breaches of contact orders. (B v S (Contempt: Imprisonement of Mother) [2009].

Contact OrderRe M [2003] – over a long period, the mother had continued to make allegations of sexual and physical abuse of the children by the father, despite the court findings that they were unfounded. During this time, she had made several promises to the court that she would obey contact orders it made but had broken all of them. Finally, the court ordered the LA to investigate. As a result of the investigation, the LA applied for a care order which enabled them to remove the children from the mother. Away from her influence, the children rapidly established a satisfactory and enjoyable contact with the father – so satisfactory that he applied for and was granted a residence order.

This case highlights how contact can be denied by the resident order even after a contact order has been made to the father. In recent years, the High Court and Court of Appeal have been faced with a spate of cases as such.

However, it is not possible to make a residence order simply for the purpose of punishing a parent who is preventing contract. Such an order can only be made if it is in the best interests of the child to do so. Many fathers who want contact are unable to accommodate the child. Even if they are, it may not be the best solution to remove the child from a mother against whom the only complaint is that she will not permit contact with the father.

Nevertheless, there have been a number of cases in which the courts have ordered the transfer of residence from one parent to another on the basis that the child was being harmed by being denied a relationship with the other parent ( Re S Transfer of Residence 2010)

Children and Adoptions Act 2006

Parliament accordingly passed this Act, which came into force December 2008. It made provisions for:

(1) Contact activity directions/conditions – these enable courts to direct parents to participate in classes or counselling with the aim of promoting contact. The activity may be designed to address the hostility of a parent who is frustrating contact, or the violence of a parent who is seeking contact.

(2) Assistance from outside agencies – CAFCASS has been given the task of monitoring compliance with contact orders and changes have been made to the family assistance order to enable it to play a greater role in supporting families in conflict over contact.

(3) Improved enforcement – the legislation confers new powers on the courts to enforce contact, for example, by imposing an ‘unpaid work requirement’.

In addition, official policy is that litigation should be a last resort. Parenting plans, mediation, and in court conciliation have all been introduced to support parents in making their own arrangements.

Activity

Complete the seminar questions