Private Law
Information from http://www.cafcass.gov.uk/the_law_about_children/contact_and_residence.aspx
"In private law cases the child is not automatically a party to the proceedings and will not automatically be represented by a guardian ad litem. However the court can request a welfare report under s7 Children Act 1989, Welfare reports are usually prepared by a Children and Family Reporter from Cafcass. If there are serious welfare concerns the court may ask the local authority to contribute the report (under s37), though the proceedings may still remain under private law. The report will usually inform the court of the child's wishes and feelings, but if the officer makes recommendations, these will be based upon what they think is in the child's best interests in the circumstances of the case, rather than just relay the child's wishes.
In certain circumstances the court may order that the child does become a party to the proceedings and will appoint a guardian ad litem. The court is required to look to Cafcass in the first instance for the guardian, who will often be the Cafcass officer already involved in any proceedings. Other organisations, such as the National Youth Advocacy Service, may provide a guardian. The guardian will instruct a solicitor on behalf of the child.
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 of the proposed application disrupting the child's life to such an extent that they would 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.
Shared Residence - section 8 Children Act 1989
A Shared Residence Order (a residence order made in favour of two or more persons) is therefore not necessarily an order requiring equal sharing, of the child spending equal amounts of time with each parent.
The wording of s11(4) of the Act was lifted directly from the Law Commission’s 1998 Report, Law Com No. 172, which recommended to Parliament that Residence Orders “should be flexible enough to accommodate a much wider range of situations. In some cases, the child may live with both parents even though they do not share the same household. It was never our intention that children should share their time more or less equally between their parents. Such arrangements will rarely be practicable, let alone for the child’s benefit. However, the evidence from the United States is that where they are practicable they can work well and we see no reason why they should be actively be discouraged.â€
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.
The 'no order' principle - section 1 Children Act 1989
The court should consider whether making ‘no order’ on an application might be the preferred outcome. After a period of little regard for this principle the present emphasis on in-court conciliation and dispute resolution, as a result of the ‘Private Law Programme’ guidance of 2004, has meant that an increasing number of applications are ending up with ‘no order’ being made.
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."
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