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.