Contact and Residence
Applications for residence or contact orders are usually between
private individuals, under s8 Children Act 1989. Where someone
seeks an order in respect of a child who is in the care of the
local authority it will be considered a public law matter.
In private law cases the child is not a party
to the proceedings unless there are particular circumstances that
make the case complex. The court can request a welfare report under
s7 Children Act 1989, either from the local authority or from a
Children and Family Reporter who is an officer appointed by
Cafcass. The report will usually inform the court of the child's
wishes and feelings, but the officer will make a recommendation
based on what they think is in the child's best interests rather
than just report on the child's wishes.
In some circumstances the court may order that
the child is made a party to the proceedings. A guardian ad litem
(who again is an officer of Cafcass) is appointed to represent the
child in the proceedings and the guardian will appoint a solicitor.
If the child and Guardian do not agree on what recommendations to
make to the court and the child is of sufficient age and
understanding, they will be able to instruct a solicitor directly
to represent their views and the Guardian will present their own
views to the court.
Certain categories of people are entitled to
make an application for a residence or contact order under s8,
without having to seek permission from the court first and they
are:
1. The parent, guardian or
special guardian of a child.
2. Any person who has parental responsibility
3. Anyone who holds a residence order in respect of the
child.
4. Any party to a marriage or civil partnership where the child is
a child of the family.
5. Anyone with whom the child has lived for at least 3 years
6. Anyone who obtains the consent of:
a) a residence order
b) the local authority if the child is in their care or
c) everyone who has parental responsibility for the child.
Other people can make an application to the
court for permission to issue an application for residence or
contact. In deciding whether to give permission the court will take
into account, amongst other things:
1. The nature of the
application.
2. The applicant's connection with the child.
3. The risk there might be of the proposed application disrupting
the child's life to such an extent that they should be harmed by
it.
It is via this route that wider family members
such as grandparents are able to apply for orders in respect of
their grandchildren.
The Welfare
Checklist - section 1 Children Act 1989
When a court considers any question relating
to the upbringing of a child under the Children Act 1989 it must
have regard to the welfare checklist set out in s1 of that Act.
Among the things the court must consider are:
a) The ascertainable wishes and
feelings of the child concerned (considered in light of his age and
understanding);
b) His physical, emotional and/or educational needs;
c) The likely effect on him of any change in his
circumstances;
d) His age, sex, background and any characteristics of his, which
the court considers relevant;
e) Any harm which he has suffered or is at risk of suffering;
f) How capable each of his parents and any other person in relation
to whom the court considers the question to be relevant, is of
meeting his needs;
g) The range of powers available to the court under the Children
Act 1989 in the proceedings in question.
For all proceedings under the Children Act
1989 when the court considers a question of the child's upbringing
the child's welfare is the court's paramount consideration.
Residence
Orders - section 8 Children Act 1989
These orders decide who the child is to live
with. The granting of a residence order to someone automatically
gives him or her parental responsibility for the child if they do
not already have it. Parental responsibility obtained as a result
of a residence order will continue until the order ceases.
A residence order lasts until the child is 16
unless the circumstances of the case are exceptional and the court
has ordered that it continue for longer.
A residence order can be granted to more than
one person whether they live together or not.
A residence order prevents anyone changing the
surname of or removing from the UK (for more than 1 month) any
child who is the subject of the order without the agreement of
everyone with parental responsibility or an order of the court.
Contact Orders -
section 8 Children Act 1989
These are orders that require the person with
whom a child lives to allow that child to visit, stay or have
contact with a person named in the order.
Orders continue until the child is 16 years.
The court will only make contact orders for children over 16 years
old in exceptional circumstances.
Contact can either be direct e.g. face-to-face
meetings with a person or indirect e.g. by letter, video, exchange
of Christmas cards etc.
Some orders will be very specific as to times,
dates and arrangements for contact; other orders will be more open
with detailed arrangements to be made between the parties by
agreement.
These orders are not just obtained by parents
for contact with their children; there can also be orders for
contact between siblings or the child and wider family members.
Sometimes the order will give directions that
the contact is to be supervised by a third person. The order may
also only be for a specific period or contain provisions which
operate for a specific period.
Failure to comply with an order for contact
may result in the court making further orders specifying activities
that the resident carer has to undertake or the court making other
enforcement orders which can include an order for unpaid work.
Parental Responsibility - sections 3 and 4
Children Act 1989
Parental responsibility means all the rights,
duties, powers, responsibilities and authority, which by law a
parent of a child has in relation to the child and his
property.
The birth mother of a child will always have
parental responsibility unless it is extinguished by the making of
an adoption order to another person.
Where the child's father and mother are
married to each other at the time of the birth, they both have
parental responsibility for the child.
Where the child's mother and father are not
married to each other at the time of the birth the general rule is
that the mother has sole parental responsibility for the child.
However, an unmarried father will have parental responsibility for
a child born after 1 December 2003 if he is named on the
Register.
Other ways in which a father can obtain
parental responsibility are by:
a) drawing up an agreement with
the mother (a parental responsibility agreement), which is a
specific form that has to be signed by both parents;
b) marrying the mother; or
c) the court making a parental responsibility order if the parents
cannot agree on the father having parental responsibility.
Other people may acquire parental
responsibility by entering into an agreement if they are the
husband or civil partner of the mother, or if the obtain a
residence order.
More than one person can have parental
responsibility for the same child at the same time. Parental
responsibility is shared between everyone, but where more than one
person has parental responsibility for a child each of them may act
alone in meeting that responsibility except in circumstances where
the consent of everyone with parental responsibility is
required.