Navigating the complexities of family law can be challenging, especially when it comes to resolving disputes about children. Section 8 of the Children Act 1989, provides a legal framework to assist parents and other parties in addressing these issues. In this blog, Lydia Hackett, a trainee solicitor in our family department, breaks down the steps and explains the three types of orders available under Section 8 that the Family Court can assist with.
3 Types of Orders Available Under Section 8 of the Children Act 1989
- Child arrangements order: – where a child will live and what time a child will spend with each parent
- Prohibited steps order
- Specific issues order
Child Arrangements Orders
A Child Arrangements order is an order setting out arrangements relating to :
- Where a child is to live, spend time or otherwise have contact, and
- The time a child is to live with, spend time or otherwise have contact with any person
Essentially, a Child Arrangements Order is an order which determines arrangements on who the child(ren) live with and/or spend time/have contact with.
If a Live with Order is made, it provides the parent a right to take the child(ren) out of the country for up to 28 days without having to seek the consent of the other parent and also provides the parent named parental responsibility if that did not already have this.
What is a Prohibited Steps Order?
A Prohibited Steps Order can be applied for to stop someone who holds parental responsibility for the child from exercising their parental responsibility. Essentially the order is to stop a parent from doing something. For example, preventing the child from being moved away from home, both within or outside the UK, , stop a child being removed from school and changing a child's surname.
A Prohibited Steps Order can be made with notice or without notice to the other party. Without notice applications are made when an urgent decision needs to be made in respect of the child(ren). If an application is made without notice this will mean that the Respondent will not be aware of the application or invited to attend a Cout Hearing in the initial stages.
To apply for a Prohibited Steps Order, if the party has parental responsibility, they will need to complete a C100 form. If a party does not have parental responsibility, they will also need to complete a C2 form. There is a requirement to attend a mediation and assessment meeting (MIAM) unless an exemption is applied, and evidence is produced (e.g. domestic violence or urgency).
The court will decide whether to make the requested order without notice. If the order is made without notice, it is not legally binding until the other party has received a copy of the order. Whether the court makes the order without notice or not a hearing will be listed as soon as possible for the court to consider the application and whether an order should continue or be made. If an agreement cannot be reached at the first Hearing, the Court will often direct for parties to file statements before listing the matter for a Final Hearing.
Specific Issues Orders within Child Arrangement
A Specific Issue Order is an order the court can make in relation to a specific matter. That could include what school a child should attend, whether a child should be allowed to leave the UK permanently or for a holiday or changing a child's name. The application is made when parents with parental responsibility cannot agree on a limited issue.
To apply for a Specific Issues Order, if the party has parental responsibility, they will need to complete a C100 form. If a party does not have parental responsibility, they will also need to complete a C2 form. There is a requirement to attend mediation and assessment meeting (MIAM) unless an exemption is applied, and evidence is produced (e.g. domestic violence).
The court will list a hearing as soon as possible to consider the application. If an agreement cannot be reached at the initial Hearing, the Court will often direct for parties to file statement a statement before listing the matter for a Final Hearing. The court might ask for other evidence to be filed too.
A specific issue order will last until the child is 16, unless otherwise specified.
6 Factors Considered in the making of Section 8 of the Children Act 1989
In considering any application made the Court has a primary duty to focus on the welfare checklist that is set out in Section 1 of the Children Act 1989. Some factors the Court looks at are:
- The wishes and feelings of the child
- A child's physical, emotional and educational needs;
- The likely effect of any change in circumstances;
- The child's age, sex, background and any characteristics which the court considers relevant;
- Any harm which the child has suffered or is at risk of suffering;
- How capable each of the child's parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child's needs.
The role of CAFCASS
CAFCASS are a court advisory body. They help the court make decisions about children when parents cannot agree. The first thing the court asks for when an application is made are safety and welfare checks. CAFCASS will check with the Police and Local Authority/Social Services what involvement, if any, they have had with the family. CAFCASS will also speak to the parents to find out what they are asking for. These checks are sent to the court at the start of an application and CAFCASS will make initial recommendations.
The court might ask CAFCASS to file a detailed report to look at any children application. This is called a section 7 report and will take about 16 weeks for CAFCASS to write. CAFCASS will make clear recommendations to the court about what orders would be appropriate to make.
Who can apply for a Section 8 Order?
- A party with parental responsibility for the child(ren)
- Anyone named on a Live With (residency) Child Arrangements Order
- Any party in a marriage in relation to the child of the family
- Any person with whom the child has lived with for the last 3 years
- A Guardian
- Local Authority Foster Parent
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.