Private disputes Flashcards
What are Private Orders
´ Relate to disputes between private parties (that is generally between the parents).
´ Child’s welfare is paramount
Explain s8 CA 9189
(1) In this Act — “child arrangements order” means an order regulating arrangements relating to any of the following—
(a) with whom a child is to live, spend time or otherwise have contact, and
(b) when a child is to live, spend time or otherwise have contact with any person;
“a prohibited steps order” means an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court;
“a specific issue order” means an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.
What does s12 C and F Act 2014 say
´ S12 Children and Families Act 2014: “child arrangements order” means an order regulating arrangements relating to any of the following
´ a) With whom a child is to live, spends time or otherwise have contact, and
´ b) when a child is to live, spends time or otherwise have contact with any person.
What does s10 4 of CA 1989 say about entitlement to sec 8 order
The following persons are entitled to apply to the court for any section 8 order with respect to a child—
(a) any parent, guardian or special guardian of the child; (aa) any person who by virtue of section 4A has parental responsibility for the child; (b) any person who is named, in a child arrangements order that is in force with respect to the child, as a person with whom the child is to live.
What does 10 5 CA 1989 say about child arrangement orders
5) The following persons are entitled to apply for a child arrangements order with respect to a child—
(a) any party to a marriage (whether or not subsisting) in relation to whom the child is a child of the family;
(aa) any civil partner in a civil partnership (whether or not subsisting) in relation to whom the child is a child of the family;
(b) any person with whom the child has lived for a period of at least three years;
(c) any person who—
(i) in any case where a child arrangements order in force with respect to the child regulates arrangements relating to with whom the child is to live or when the child is to live with any person, has the consent of each of the persons named in the order as a person with whom the child is to live;
(ii) in any case where the child is in the care of a local authority, has the consent of that authority; or
(iii) in any other case, has the consent of each of those (if any) who have parental responsibility for the child.
(d)any person who has parental responsibility for the child by virtue of provision made under section 12(2A).
5A) A local authority foster parent is entitled to apply for a child arrangements order to which subsection (5C) applies with respect to a child if the child has lived with him for a period of at least one year immediately preceding the application.
5B) A relative of a child is entitled to apply for a child arrangements order to which subsection (5C) applies with respect to the child if the child has lived with the relative for a period of at least one year immediately preceding the application.
5C) This subsection applies to a child arrangements order if the arrangements regulated by the order relate only to either or both of the following—
(a) with whom the child concerned is to live, and (b) when the child is to live with any person
Who can apply for a child arrangements order
´ s10(5) (a) any party to a marriage
´ s10(5)(aa) any civil partner in a civil partnership
´ s10(5) (b) any person with 3 years living with child
´ s10 (5) c Person who regulates arrangements or in the local authority
´ s10 (5)(A) a local authority foster parent
´ s10(5A) foster parents (1 year living with child)
´ s10(5B) – & relatives – (1 year living with child).
´ s10(8) child, with leave from court, if the person has sufficient understanding.
Is the aim to keep matters out of court
yes, s 1 5 CA 1989- ´ Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.
´ Better than making no order at all.
´ Burden on applying party.
What is the shared residence principle
´ Can be stipulated in a child arrangements order (previously shared residence order).
´ Child spends roughly equal time with each parent.
´ Previously it was rare for courts to award shared residence
´ Thought to be unsettling for children and encouraged animosity between the adults.
´ However this is no longer a popular attitude.
´ Re AR (A Child: Relocation) [2010] Mostyn J suggested that a shared residence order is ‘ the rule rather than the exception’.
´ But practitioners/other judges do not necessarily agree!
´ T v T [2010]- Black LJ suggested that this idea had gone too far. The position is that a shared residence order could be made where doing so would be in the best interests of the child.
When is a shared residence order inappropriate
If parent are on bad terms/will use child to harm other parent ( Re K 2008)/live far apart
What does the family justice review 2011 say about shared parenting
´ In its response to the Family Justice Review, the Government made clear that it did not want to introduce a presumption of shared parenting but it did suggest that there should be “a legislative statement of the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and is in the child’s best interests…. a meaningful relationship is not about equal division of time, but the quality of parenting received by the child”
´ Government subsequently launched a public consultation on ‘Co-operative Parenting Following Family Separation: Proposed Legislation on the Involvement of Both Parents in a Child’s Life’.
Section 11 of the Children and Families Act 2014 was the eventual outcome of that consultation.
What are the key changes introduced in the Children and Families act 2014
´ The most significant changes for children lawyers dealing with private law matters relate to: (this is disputes between parents, and not between parents and the State, which constitute public matters and orders).
´ Compulsory mediation information and assessment meetings (section 10).
´ Continued parental involvement (section 11).
´ Child arrangements orders (section 12).
Explain s11 C F A 2014
´ Introduces a presumption of continued parental involvement into the welfare checklist in s 1 Children Act 1989.
´ It requires courts ‘to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare’
´ Section 11 means that whenever the court is considering one of the following applications it will need to have regard to the presumption of continued parental involvement.:
´ An application for a section 8 order or a special guardianship order, and for variation or discharge of such orders (s 1(4) CA 1989);
´ An unmarried father’s application to the court for parental responsibility (s 4(1)(c) CA 1989);
´ An application for removal of parental responsibility granted under s 4(1) CA 1989 (s 1(2A) CA 1989);
´ An application by an unmarried second female parent for parental responsibility (these types of case arise out of lesbian couples undergoing IVF) (s 4ZA(1)(c) CA 1989); and
´ An application for removal of parental responsibility granted under s4ZA(1)(c) (s 4ZA(5) CA 1989).
What are the forms of contact in a CA order
´ Forms of contact: face-to-face, telephone, video calls, texts, cards and letters.
´ Contact will be ordered when it is in the interests of the welfare of the child - S1(1) plus the welfare checklist in s1(3)
´ Is there right to contact?
What must the courts consider where there has been DV and child contact
´ In many cases that actually reach the courts, the resident parent may be objecting to contact on the basis that she/he has suffered domestic abuse in the past and is worried the contact will be used to continue or perpetuates that abuse.
´ Re L, V, M and H [2000] 4 cases heard together by the CA where there was violence towards mothers or fathers had been violent or threatened violence towards mothers. The mothers were fearful and opposed contact.
´ Where there had been domestic violence, there was no presumption against ordering contact, but
´ Courts must, however, take allegations of domestic violence very seriously. Courts must consider the seriousness of the violence, the risks involved and the impact on the child of contact following domestic violence and weigh that against any benefits of contact.
What are the breach of contact order solutions revised by gov in Children and Adoption Act 2006
´ The Government sought to introduce the new solutions in the Children and Adoption Act 2006, which introduced three orders that may help in some cases
´ 1.Contact activity directions and conditions. This can direct a party to the proceedings to attend a class, counselling, guidance, information and advice about contact or mediation. Alternatively it may encourage both parties to attend mediation and see if they could talk through the issues and are making contact difficult
´ 2.The court can place unpaid work requirements of the person breaching the order. Might involve community service.
´ 3.The court can ask a CAFCASS officer to monitor contact.
