Private disputes over Children under Section 8 orders

What is a Section 8 Order?

In private cases involving children the courts may make one of the orders mentioned in Section 8 of the Children Act 1989.

  • A Section 8 order cannot be made in respect to a person over the age of 18.
  • It is also worth noting that if the child is 16 or 17 then a Section 8 order should not be made unless the ‘circumstances of the case are exceptional’.
  • The Section 8 order will also last until the child’s 18th

What is a Child Arrangements Orders?

The Child Arrangements Order determines with whom a child should primarily live with and with whom a child should have contact with.

  • A Child Arrangements Order is not that a parent must ensure the other parent is able to spend time with their child.
  • If a parent takes steps to actively prevent the other parent seeing the child under the terms of the order it will be seen to be breaching the order and liable as a result.
  • However, a parent who simply fails to facilitate contact may not be.

Parental Contact

The Child Arrangement Order allows the court to regulate contact normally involving

  • Face-to-face meetings
  • Letters
  • Emails
  • Skype and telephone calls.

In some instances an indirect contact order may be deemed more appropriate if the contact parent cannot see the child for example:

  • If the parent was in prison.

It may also be appropriate if the child and the contact parents do not have a current relationship but intend to both establish/ re-establish a personal/direct contact.

Specific Issue Orders

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.’

The reason it was created was to deal with particular one-off issues relating to a child’s upbringing.

Prohibited Steps Orders

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’

This order informs the parent what he/she may not do in respect of their child. This order can be used, for example, to prevent a child being removed from the UK.

For more information on Relocation please follow this link:

This order informs the parent what he/she may not do in respect of their child. This order can be used, for example, to prevent a child being removed from the UK.

Parental Responsibility (PR) and S.8 Orders:

This means that the order must relate to an issue concerning the upbringing of a child and not just concerning the relationship between the parents.

Agreed/Written Terms

A Prohibited Steps Order or a Specific Issue Order must be in clear terms.

Example:

An order prohibiting the publishing of ‘any information’ about two children was found to be in too general terms and restricted by the Court of Appeal to information that identified the children.

Attachment of conditions:

When making any order, the court may choose to attach conditions to the order. This power enables the court to ‘fine tune’ the order in order to deal with the child’s specific needs.

However, the courts have developed a number of restrictions on the use of the power. These include:

  • Conditions are intended to be supplemental to the Section 8 order and should not be used as the primary purpose of the order.
  • The condition must be incompatible with the main order,
  • The condition cannot affect the fundamental rights of a parent.

Example:

The court should not use conditions attached to residence orders to ‘perfect’ a parent. Alternatively, when deciding who should have a residence order, they court should choose between the parents as they currently are.

  • The condition cannot be used as a back-door route to obtaining an order that is available under the other pieces of legislation.
  • The condition must be enforceable
  • There is no power to use conditions to interfere with the local authority’s exercise of its statutory or common law powers. Therefore, a condition cannot be used to require a local authority to supervise contact or to exercise its powers in a particular way.

Who can apply?

It is necessary to distinguish two separate groups of applicants. This includes:

  • Those who have the automatic right to apply for an order and
  • Those who have the right to apply only if the court grants leave.

Generally, those that have a close link with the child can automatically apply for a Section 8 order. Only if the court thinks there is an issue which requires a full hearing will it give leave for application to be heard. The requirement for leave also enables the court to filter applications that the court deem to be inappropriate, without causing the residential parent the expense and stress of preparing a defence and attaching the hearing.

Definition of Leave from the Court

Is permission obtained from a court enabling a person to take action.

Persons Who Can Apply Without Leave from the Court

Those who can apply for any Section 8 order without leave of the court are:

  • Including unmarried father without PR. It does not include former parents for example a child that has been adopted.
  • Anyone who has parental responsibility for the child
  • Guardians and special guardians
  • Any person who is named, in the child arrangements order that is in force with respect to the child, and person with whom the child is to live.

Persons Who Can Apply Without Leave from the Court (Only for Child Arrangement Orders)

  • Any party to a marriage or civil partnership if the child has been treated by the applicant as a ‘child of the family’. This includes steps parents.
  • Any person with whom the child has lived for at least 3 years,
  • A relative or foster carer with whom the child has lived for at least 1 year
  • Any person who has the consent of:
  • Each of the persons in whose favour a CAO is in force directing the child to live with them
  • The local authority, if the child is subject to a care order or,
  • In any case, where each of the people who have PR for the child
  • Any person who has parental responsibility for a child by virtue of a CAO.

Persons That Need Leave from the Court

Anyone can apply for a Section 8 order once they have obtained leave of the court. The factors that the court will take into account in deciding whether to give leave depend on whether the applicant is an adult or a child.

Adults Seeking Leave from the Court

The factors to be considered are listed in Section 10(9) of the Children Act 1989. However, the court can consider factors that are not listed in the section most notably the child’s wishes and feelings.

In deciding whether or not to grant leave, the court must take the consideration of the applicant’s rights under Article 6 and 8 of the European Convention. This suggests that only where the application is thought harmful to the child will leave not be granted.

The courts particular regards include:

  • The nature of the proposed application for the section 8 order;
  • The applicant’s connection with the child;
  • Any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it; and

Where the child is being looked after by a local authority:

  • The authority’s plans for the child’s future; and
  • The wishes and feelings of the child’s parents.

Restricting Section 8 Applications

Under certain circumstances one parent may intend on pursuing applications against the other out of bitterness or desperation. In order to restrict such applications, the court can require a party to obtain the leave of the court before applying for any future orders. The result is that the child and their carer will not be bothered by having to defend an application unless the court has considered it worthy of a full hearing and granted leave. A court can also make an order whenever it disposes of an application for any order under the Children Act 1989 for example, applications for a residence order.

Disclaimer

While every effort has been made to ensure the accuracy of the information provided in this article, it does not constitute legal advice and cannot be relied upon as such. Each legal case and issue may have unique facts and circumstances, as a result legalally does not accept any responsibility for liabilities arising as a result of reliance upon the information provided. For further help and guidance, you can always rely on and seek advice from our experienced lawyers.