disputes concerning the care and upbringing of children Flashcards
the welfare principle
section 1(1) the children act 1989-
“the childs welfare shall be the courts paramount consideration”.
George green solicitors website-
“paramount means that the welfare of the child should come before and above any consideration in deciding whether to make an order”
Holt v Kelly 2020- children not trophies
- key orders
child arrangement- where the child lives and how much time sent with each parent
prohibited steps- prevents someone from carrying out an action without the courts agreement
specific issue- dispite resolved involving things such as education and medical
- grounds for making an order
section 1(1) the children act 1989-
-welfare of the child with respect to
(a) the upbringing
(b) or the administration of a childs property or the application of any income arising from it
A(children) (contact: ultra-orthodox judaism: trasgender parent) 2020- ultra orthodoc jew family, father became transgender and left, originally believed best interets for children to have no contact due to strict orthodox community, was going to be reheard but father did not pursue application.
great ormond street hospital v yates 2017- childs best interest to not continue treatment despite parents plead
- other principles
- a presumption that it is in the interests of the welfare of the child for their parents to be involved in their life
- the no order principles- the court should only make an order if doing so would be better than not making an order at all
- the welfare checklist:
-the wishes and feelings of the child concerned considering their age and understanding (11/12+)
-physical,emotional and educational needs
-the likely effect on him of any change in circumstances
-his age,sex, background and characteristics
-harm which he has suffered or is at risk of
-how capable his paprents are at meeting his needs
-range of powers available to the court under this act in the proceedings - the natural parent is presumed to be more significant than non biological (Re G 2006- favoured natural mother not lesbian mother) (Re B 2009- favoured criminal father over grandmother who raised child but then overturned)
contraditory case (A local authority v F 2022- only indirect contact every 6 months to father who killed mother and courts were not required to consult him about the childrens progress)
more principles to consider for orders - consideration of the childs views and assumption of contact
the courts must consider the childs views wherever possible especially according to their age and experienece
-by way of cafcass, child writing letter to the court, child being a party to proceedings, judge meeting with child
Re T 2002 (child refusing to see father, need to consider allienation by mother or genuine)
-assumption that contact between child and parent is beneficial, Re L 2000 indirect was sufficient
-but not that there is a right to contact
removal from jurisdiction
-if parents wishes to remove child from jurisdiction thet require leave of the court
-welfare of child is paramount
A father v A mother and stepfather and a young person- schild age 14 wrote a letter to judge to ask to move country with father, judge did not allow as they believe he had been put under pressure from parent
parental alientation syndrome
Re M 2000- violent father had seen child at contact centre, boy refused contact so no contact for 2 years, psychologist argued instance of parental alientation syndorme by mother, however courts rejcted as mother had kept up contact for 5 years
-allienation is not a recognised syndrome
F v M 2021- scott schedules
father dominating young mother to where she couldnt say how she felt and made up story to police about her parents threatening her
mother did not have the capacity to essert her own autonomy
judge said occasions where a parent has nothing to offer a child and child is better withoit them (challeneges presumption that contact is in best interest)
Hayden J points out from this case
-scott schedules are a form required to be filled in to list why you feel you have been subjected to domestic abuse
-these are not going to communicate the magnitude of the coersive behaviour
-scott schedules claimed to be no longer suitable in these cases as they stop victims from being able to represent their true experiences
walsh 2023
familys experience the family court as a “byzantime, dystopian horror, and terrible for women and children”
“failure to implement safety as the first principle of contact”
Re H-N and other 2021
4 joint appeals
1. involved abuse and rape by father to mother,
corts used this to provide guidance in rlation to the proper approach regarding these issues
finding of facts hearing only takes place where relevant to any children act order being made
if hearing takes place, only concepts of coersive and controlling behaviour will be focus
courts only open to hearing about abuse if involved children (welfare principles)
recognition that scott schedules is not appropriate to allow the courts to understand the pattern of the behaviour
comments and criticism of the family courts
barnett and proudman 2023-
in 2020 harm panel report recognised the systemic problem with the family courts managing domestic abuse
practice direction 12J sets out when the courts should use fact finding
recognised in this article how out of date that practise direction is and doesnt recognise the nature of the abuse
- Re H-N case shows how focus of physical injury is completely outdated and should focus on coersive behaviour which should be the primary focus
this case valuable in recognising these problems
these scholar argue that the case of K v K 2022 shows a risk of us going back as the court are not sure what to do with the criminal allegations of rape, also critises couple for not mediating first
“although the court of appeal in H-N confirmed that training for judges in rape,domestic abuse and coersive and controlling behaviour is maddatory, it remains unclear what training is provided”
-problem with parental alienation, “parental alienation is not recognised as a medical disorder by the WHO.. there is growing evidence that parental alienation is often counter-alleged by fathers when mothers alleged domestic abuse”
this is a tactic to undermine allegation of domestic abuse
more on summary slides
obstruction of contact
the courts do have powers for if a parent obstructs contact, the courts might transfer residence to the obstructed parent
the child and adoption act 2006 provides a range of orders:
contact activity direction (e.g counselling)
contact activity condition (contact order made and particular activity supports this)
unpaid work requirement
compensation for financial loss
