Private law cases

Applications for child arrangements orders are usually between private individuals under Section 8 Children Act 1989, which are therefore private law matters. 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 Section 7 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 children’s guardian (who is a Cafcass Officer) 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 child arrangements order under Section 8 without having to seek permission from the court first, and they are:

• the parent, guardian or special guardian of a child;
• any person who has parental responsibility;
• anyone who holds a residence order in respect of the child;
• any party to a marriage or civil partnership where the child is a child of the family;
• anyone with whom the child has lived for at least three years;
• anyone who has obtained the consent of:
  • the local authority if the child is in their care; or
  • everyone who has parental responsibility for the child.

 

Other people can make an application to the court for permission to issue an application for a child arrangements order. It is usually via this route that wider family members such as grandparents are able to apply for orders in respect of their grandchildren. In deciding whether to give permission the court will take into account, among other things:

• the nature of the application;
• the applicant’s connection with the child; and
• the risk there might be of the proposed application disrupting the child’s life to such an extent that they would be harmed by it.

 

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 Section 1 of that Act. This requires the consideration of:

• the ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding);
• their physical, emotional and/or educational needs;
• the likely effect on them of any change in their circumstances;
• their age, sex, background and any characteristics of theirs which the court considers relevant;
• any harm which they have suffered or are at risk of suffering;
• how capable each of their parents (and any other person the court considers the question to be relevant) is of meeting their needs; and
• the range of powers available to the court in the proceedings.

 

The child’s welfare is the court’s paramount consideration for all proceedings under the Children Act 1989 when it considers a question of the child’s upbringing.

These orders decide who the child is to live with or spend time with, and can be granted to more than one person whether they live together or not. If a child arrangements order states that the child will live with a person, that person will have parental responsibility for that child until the order ceases. Contact with a child can either be direct (such as face-to-face) or indirect (such as by the exchange of letters). 

Some orders will make very specific arrangements for the child; other orders will be more open with detailed arrangements to be made between the parties by agreement. Child arrangements orders are not only made in respect of parents; there can also be orders for arrangements between siblings and wider family members. Sometimes the order will give directions that contact is to be supervised by a third person, or that contact is to take place in a specific location.

Failure to comply with an order may result in the court making further orders specifying activities for a party to undertake or the court making other enforcement orders which can include an order for unpaid work.

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 their 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 1st December 2003 if he is named on the birth certificate and Register.

Other ways in which a father can obtain parental responsibility are by:

• drawing up a parental responsibility agreement with the mother, which is a specific form that has to be signed by both parents;
• marrying the mother; and
• the court making a child arrangements order for parental responsibility 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 they obtain a child arrangements order for residence.

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.