S 8 orders Flashcards
When can an order be granted
- S 10(1) orders can be granted in the course of family proceedings (or proceeding listed in s 8)
- S 10(2) free standing applications can be made
Who can apply
Those entitled to apply (s 10(4) and s 10(5)); 2) People who have been granted the courts leave to apply (s 10(8) and s 10(9)).
Who are entitled
S 10(4)(a) CA: any parent, guardian or special guardian of the child. (N.B. includes unmarried fathers without PR).
Who will need leave
- S 10(8) when person applying for leave is the child concerned, the court may only grant leave if there is sufficient understanding to make the application.
Does the WP apply to a leave application under s 10(8)
- The WP does not apply to a leave application under s 10(8) as not an application directly about the up bring of the child.
Case that held sufficient understanding and chances of success
Re SC (FD): A 14-year- old girl who was in LA care and living in a children’s home was granted leave to apply for a residential order enabling her to live with an adult friend. It was held that the welfare principle does not apply to a leave application as it does not raise any question about the upbringing of a child. S 10(8) gives the court discretion to grant leave to a child with sufficient understanding but does not require it do so. The court is entitled to take other matters into account such as the child’s chances of success if allowed to proceed. Children should not be allowed to embark on proceedings that are doomed to failure.
Case where a child’s application did not add anything
Re H (FD): A 12-year-old boy of sufficient understanding was denied leave to seek a residential order enabling him to live with his father. The father was also seeking a residential order and the boy’s involvement would not add anything to the proceedings. The boy’s desire to express his wishes directly to the court did not justify exposing him to the details of his parents’ dispute.
Children as young as what have been granted leave
9
What is s 91(14)
S 91(14) courts can prevent a person from making any further CA applications without leave.
Which case held that s 91(14) are draconian
Re P (CA) orders are draconian as they restrict the citizen’s fundamental right to have access to the courts. They should be used sparingly and they should not be imposed without giving the parties an opportunity to make submissions. The scope and duration or the order should be proportionate to the harm it is intended to avoid.
Stringer v Stringer:
A father had made numerous applications for contact and residence orders resulting in between 50 and 100 court hearings over a period of five years. There was no real prospect of the children’s settled living arrangements being altered. first satisfied a judge that he had an arguable case with some prospect of success in relation to any application that he wished to make.
Case where s 91(14) can be used for protection
Re P (CA): - However, the foster-parents were Roman Catholic and the birth family became determined to get the child back. A s 91(14) order was regarded as the only way to ensure stability for the foster-parents and child. CA held that in this second kind of case, there must be some special need for extra security and the court must be satisfied that, without the s 91(14) protection, the child or the carers would be subject to unacceptable strain.
How long will s 8 orders last
The general rule is that a section 8 order will be made until the child is 16 and only over if the circumstances are exceptional. RCAO till 18
SIO
- 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
- Examples of issues, e.g. where a child so go to school, immunised, circumcised, if their name should be changed. Allows NRP to have their voice heard.
Case for SIO
Re C (CA): - 15-year-old girl refused leave to seek a SIO which would have enabled her to go on holiday to Bulgaria with the family of a friend. Johnson J said: In my view this jurisdiction is one which should be reserved for the resolution of matters of importance. This is not a matter which I regard as important.
