Children's Law Guide
A guide to the orders that the Court can make under the Children Act 1989 and factors that the court will consider.
MIAMS stands for Mediation Information and Assessment Meetings. You are required to attend such a meeting, unless there are exceptional circumstances, to discuss the options of how to resolve your dispute before issuing any application to the court. The mediator will usually charge a fee for such meetings.
The court encourages parents and others involved in children’s lives to work together to agree solutions for their children. To this end, mediation is encouraged. This allows parties to discuss the issues with a third party to assist them in trying to reach agreement. Mediators usually charge for their services.
Why does the court get involved?
Most of the law relating to children is governed by the Children Act 1989 with recent amendments from the Adoption and Children Act 2002 and the Children and Families Act 2014. The ethos of the acts is that when parents separate, they remain parents to the child and it is their responsibility to make suitable arrangements for their children. The court only gets involved when the adults who are responsible for decision-making are unable to agree on what is best for their children and when they are either exempt from attending mediation or when mediation has proved unsuccessful. The court will not make any order unless it is better for the child to do so than not.
What sort of orders can the court make?
The court can regulate almost all areas relating to a child’s upbringing. The most common orders that the court can make are as follows:
- Child Arrangements Order: a Child Arrangements Order determines which person a child shall live with and how much time the child spends with the other parent or relevant person.
- Specific Issue Order: a Specific Issue Order is an order determining a specific question in relation to the upbringing of a child or any aspect of parental responsibility - e.g. it can determine which school a child should attend, what religion a child should be brought up in, whether a child should have an operation or other major issues concerning a child’s life.
- Prohibited Steps Order: this is an order that prevents someone from doing something which they could normally do within the exercise of their parental responsibility - e.g. they can be prohibited from allowing a child contact with a particular person, or from visiting a child at school, or from removing the child from the jurisdiction.
- Guardianship: the court can appoint a guardian for a child if there is no parent with parental responsibility for him, or someone with a Residence Order in respect of a child has died. An appointment of a guardian can be made under a Will but this only takes effect on the death of the last person with parental responsibility for the child or the person with a Residence Order.
Anyone with parental responsibility for a child can take decisions concerning that child. Parental responsibility is all the rights, duties, powers, responsibility and authorities which by law a parent of a child has in relation to the child and his property. The mother of the child has parental responsibility automatically. The father of the child has parental responsibility automatically if he was married to the child’s mother when the child was born or conceived, or he later married the child’s mother.
A father can acquire parental responsibility by executing a legally binding agreement with the mother or by court order. From 1 December 2003 fathers who are named on the birth certificate will also acquire parental responsibility. Each person with parental responsibility should be consulted about major decisions, but day to day decisions are generally decided by the person caring for the child at the time. One person with parental responsibility can take a decision concerning the child unless the other party objects. It is where parents cannot agree that the court will make orders deciding the issues.
What does the court consider when reaching a decision?
The court has to consider a number of things set out in the Children Act. The court must consider the welfare of the child as being the paramount consideration. Therefore a decision should be taken on what is best for the child. The court will not make an order unless there is a positive benefit to the child in making an order. In considering what is best for the child, the court has to have regard to the ‘welfare check list’ which is guidance set out in the Children Act.
This includes, but is not limited to;
- the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)
- the child’s physical, emotional and educational needs
- the likely effect of any change in circumstances to the child
- the child’s age, sex background and any characteristics of his which the court considers relevant
- any harm which he has suffered or is at risk of suffering
- how capable each of his parents
- any other person in relation to whom the court considers the question to be relevant, is of meeting his needs.
The court will presume, unless the contrary is established, that involvement of a parent in the child's life will further the child's welfare. The court must take account of all of the factors in the welfare checklist but does not have to give them all equal weight.
The Children and Family Court Advisory & Support Service (CAFCASS) was set up to enable the court to get a fuller picture of circumstances relating to the children and to assist parents in reaching agreement about their children, and to make recommendations about what would be the best outcome for a child. The judge will not come out to see the child with the family and probably will not meet the child throughout the court case, so rely on the CAFCASS officer for more details about the situation.
The CAFCASS officer will see all parties to the case and will meet with the children concerned if they are to prepare a report. The CAFCASS officer will try to ascertain the child’s views and wishes, as well as the circumstances giving rise to the case.
The CAFCASS officer will report on the home conditions and provide any other information that may be relevant for the court. They will usually contact the child’s school for further information.
The CAFCASS officer will then write a report for the court to provide the court with important information in reaching decisions about the child. Their views and recommendations are very important to the court because they are independently appointed by the court in order to assist in making decisions.
How are children heard within court proceedings?
In very rare circumstances children who are competent (mature enough) can instruct solicitors directly. However children’s involvement in court proceedings is discouraged and ordinarily their wishes and feelings are taken account of by the evidence describing their wishes and feelings from the people involved, from information provided by their school or surgery, and mostly by the CAFCASS officer who will see them to ascertain their views. Children do not normally come to court and permission of the judge is required if they are to come in.
Who can apply for court orders?
Parents (including fathers without parental responsibility) and any person in whose favour a Child Arrangement Order (formerly a Residence Order) is in force may make applications to the court in respect of their children. Otherwise step-parents where a child has been living with them, or any person with whom a child has lived for a period of at least three years, or anyone with the consent of those with parental responsibility for the child or the consent of a person with a Child Arrangement Order can apply for a Child Arrangement Order.
In addition, any person including other relatives, family friends etc, may apply to the court for leave (permission) of the court to bring an application in respect of the child.
The person making the application (the applicant) completes the relevant forms and sends these with a fee to the court. The court will set a date for the first court appointment. The forms are then delivered, together with notice of the first hearing, to the people entitled to be involved or notified.
All parties attend at the first appointment with their legal representatives if appropriate. The parties will meet with a worker from CAFCASS who will discuss the case with the people involved. If an agreement is reached with the assistance of the CAFCASS officer, the court can make any necessary court orders at that time. If no agreement is reached, the court will either reach a decision on a final or interim (temporary) basis or more normally the court will delay the case and ask the CAFCASS officers to prepare a report with recommendations for the court to consider. There is usually a further court appointment to consider any report prepared by the CAFCASS officer. If there is still no agreement between the parties, the court will have a final hearing to decide the case.
The court will not normally want to change arrangements concerning a child until it has all of the information it requires to reach a decision. It usually takes some time to obtain reports from CAFCASS officers (often three to four months) and for all the information about a child to be prepared in a court format and sent to the court. Therefore courts are reluctant to make decisions until they have all of that information. On average a set of contested proceedings concerning a child takes six to nine months to reach a conclusion.
However in urgent cases where a decision is needed on a temporary basis, the court can make interim orders and specify how long they will be effective for. For instance where parents cannot agree with whom a child should live, the court could make a Child Arrangement Order or temporary arrangements for contact for a specified period whilst the evidence is obtained. The court will make it on the basis of the information available at the time and it could be changed at a later date. The courts will only do this if it is absolutely essential.
The final hearing
If there is an agreement the court hearing will be very short. However if the parties still disagree about what should happen to a child, the court will reach a decision and make a court order. In order to decide the case the court will want to hear from the various witnesses to give oral evidence on their statement. Each witness (including the parties to the case) will be asked questions by their own legal representatives and by the legal representative for the other parties.
The lawyers will then make speeches to the judge on behalf of their client and the judge will then reach a decision and will specify why he has reached that conclusion. No one is allowed to tell anyone else about the content of court reports or what is said in court without permission from the judge. To do so is contempt of court.
Can a Court order be changed?
All orders relating to children can be changed at any time, and the court will simply have regard to whether or not it is in the best interests of the child to change the order. Orders will only change on an application by someone entitled to apply to the court. Once the court has made a court order, that is the situation that should prevail.
There is nothing to stop people agreeing additional contact or alternative arrangements between themselves, but the court order will still exist. If people have been able to agree changes to a Court Order, it is sensible to refer the matter back to the court to obtain a changed Court Order. Otherwise, if the agreement breaks down the position is as stated in the Court Order.