Contact and Residence
The starting
point
Welfare
checklist
Residence
orders
Contact
orders
Parental
responsibility
The Starting Point
These are cases that are between private
individuals, usually under s8 Children Act 1989. Where someone
seeks an order under s8 in respect of a child who is in the care of
the local authority it will be considered a public law matter and
rules relating to Children's Guardians will apply.
In private law cases the child is not
automatically a party to the proceedings and will not automatically
be represented by a guardian. However 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 recommend
what they think is in the child's best interests in the
circumstances of the case rather than just advocate the child's
wishes.
In some circumstances the court may order that
the child does become a party to the proceedings. At this point a
solicitor is appointed to act for the child and a Children's
Guardian is appointed (who again is an officer of Cafcass) to
represent the child in the proceedings. As in public law
proceedings, 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 can make an
application for a residence or contact order under s8 as of right,
these include:
1) the parent, guardian or special
guardian of a child.
2) anyone who holds a residence order in respect of that
child.
3) a step parent of the child where the child lived with the step
parent as a child of the
family.
4) anyone with whom the child has lived for at least 3 years
5) anyone who:
a) where there is already a
residence order in place has the consent of every one who
holds that order or
b) who has the consent of the local
authority where the chid is in their care or
c) has the consent of every one who
has parental responsibility for the child.
If an applicant cannot apply for the order as of right they
can make an application to the court seeking leave to issue the
application. In deciding whether to grant the leave the court will
consider, amongst other things:
1) the nature of the
application.
2) the applicant's connection with the child.
3) the risk there might be pf 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 seek 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 the child under the Children Act 1989 the court
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 where the child is to live
and with whom. 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 and can be made jointly to an unmarried couple.
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.
These are orders of the court and to not comply
with them can be a contempt of court with serious consequences.
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, if a child's birth is registered or re-registered from 1
December 2003 and the unmarried father is named on the Register,
this also gives him parental responsibility.
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 and lodged with the
court;
b) marrying the mother; or
c) the court making a parental responsibility order if the parents
cannot agree on the father having parental responsibility.
More than one person can have parental
responsibility for the same child at the same time. Parental
responsibility is shared between everyone, but individuals can act
alone and without the others in meeting responsibilities to
safeguard and protect the child.