Children arrangement Orders Flashcards
(50 cards)
Welfare principle- s.1(1) Children Act 1988- definition? And key cases?
s.1(1) Welfare Paramountcy: “When a court determines any question with respect to (a) the upbringing of a child; or (b) the administration of a child’s property…, the child’s welfare shall be the court’s paramount consideration.”
[ J v C ] (1970): established that the child’s welfare is the sole and paramount consideration, overriding any parental ‘rights’ or claims, even those of unimpeachable parents.
No-Delay Principle- a.1(2) Children Act 1989, definition:
s.1(2) No Delay Principle: Court to have regard to the principle that “any delay in determining the question is likely to prejudice the welfare of the child.
No Order Principle- s.1(5) Children Act 1989, definition and key case:
s.1(5) No Order Principle: “The court shall not make the order…unless it considers that doing so would be better for the child than making no order at all.”
Key case: [ Re S (A Minor) (No Order Principle) (1993) ]- illustrates judicial reluctance to intervene if a satisfactory private arrangement exists or an order won’t improve the children’s situation.
Welfare Checklist- s. 1(3) Children Act 1989, what is it for??
Mandatory in contested s.8 cases
s.1(3) Welfare Checklist: Court must have regard to these factors when considering contested s.8 orders or upbringing questions.
Checklist factor 1 and key cases
(a) Ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding)] : Child’s views matter, but weight depends on age/maturity; assessment often involves
CAFCASS (Child and Family Court Advisory and Support Service) officers; complex due to potential parental influence/ loyalty binds/ alienation, distinguishing genuine views is challenging.
Key cases: 1. Re M (Child: Contact: Wishes and Feelings) [2003]- Child’s wishes are significant but not determinative; court makes the ultimate welfare decision
Key Case 2: Mabon v Mabon [2005]- Order children’s view carry more weight, but Court must ensure they are genuine and independently formed.
- Checklist factor (b)
[His physical, emotional and educational needs
Physical] : Housing, health, safety, food, clothing
Emotional: Love, security, stability, boundaries, consistent care.
Educational: schooling, support, development opportunities
Parental Responsibility Definition?
Definition (s.3(1) CA 1989): “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.”
Who can automagically has Parental Responsibility?
Mother: Automatically (s.2(2)).
Father married to mother at birth (or later): Automatically (s.2(1)).
How unmarried Fathers acquire Parental Responsibility?
S. 4 Children Act 1989:unmarried father
- By being jointly registered on the child’s birth certificate with the mother (with mother, post 1 Dec 2003) (s.4(1A) ) ->now very common way
- By entering into a formal Parental Responsibility Agreement with the mother (s.4(1)(b)).
- (s.4(1)(a))- By obtaining a Parental Responsibility Order from the court. (Refers more in other card)
For unmarried- father obtaining PR- way 3 is: By obtaining a Parental Responsibility Order from the court. Elaboration and key case?
The Court will grant the Order if it is satisfied that it is in child’s best interests (applying the welfare checklist)
Key case: Re H (Minors) (Local Authority: Parental Rights) (No.3) [1991] - factors considered when a father applies for a PR order. Although it is an older case, it outlined considerations like the father’s degree of commitment, attachment to the child, and reasons for applying.
How step-parents acquire parental responsibility?
S. 4A Children Act 1989:
Step-parent who is married to, or the civil partner of, a parent who has PR for a child can acquire P for that child through:
1. A Parental Responsibility Agreement with all other persons who have PR for the child; or
2. A Parental Responsibility Order from the Court
What’s the link between parental responsibility and Child arrangement orders?
If the CAO stating that the child is to ‘live with’ the person, the person will acquire PR for the child if they do not already have it.
*’Spend time with’ Orders would not automatically grant PR.”
PR via ‘Live with’ Order (s.12(2) CA 1989):
CAO stating child ‘lives with’ a person grants them PR if they don’t already have it.
For s.8 orders, Generally, if the person without PR….
Needs the Court’s permission (leave) to apply for most s.8 orders
- Factor (c) of the Welfare Checklist under s.1 (3) of Children Act 1989
(c) The likely effect on him of any change6 in his circumstances : considers impacts of disruption vs benefits of change; focuses on stability and continuity. Status quo is important.
Relocation cases must be relevant.
- Factor (d) in the Welfare Checklist under s.1(3) of Children Act 1989
[His age, sex, background and any characteristics of his which the court considers relevant.] : child’s individual attributes, incl. cultural/ religious identity.
- Factor (e) of the Welfare Checklist under s. 1(3) of Children Act 1989
For factor (e), definition of “Harm”?
Defined broadly in s. 31(9) of Children Act 1989: ill-treatment (physical, emotional, sexual), impairment of health/ development. Includes neglect. (More in other cards)
For factor (e)-> any harm which the child has suffered or is at risk of suffering, harm defined in s.31 (9), any key cases:
Domestic Abuse — Re L (Contact: Domestic Violence) [2000] : Landmark case establishing that domestic violence between parents is relevant to child welfare and contact, even if the child is not directly abused (witnessing is harm)
+ Practice Direction 12J (PD12J) - Specific court guidance on managing private law children cases involving domestic abuse;
+ ** Domestic Abuse Act 2021** - provides a statutory definition of domestic abuse and recognises children as victims.
- Factor (f) of the Welfare Checklist under s. 1(3) of Children Act 1989:
[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.] :
parenting capacity beyond finance/ time, includes emotional warmth, providing guidance/ boundaries, stability, promoting education/health, insight, commitment, impact of parent’s health, managing competing demands (e.g. caring for others). Seek ’good enough’ parenting. Not about comparing wealth.
- Factor (g)?
[The range of powers available to the court]
Types of Section 8 Orders (CA 1989):
- Child Arrangements Order (CAO)
- Prohibited Steps Order (PSO)
- Special Issue Order (SIO)
Definition of Child Arrangements Order (CAO) and section?
S.8 of Children Act 1989- Child Arrangements Order (CAO):
Determines with whom a child lives, spends time, or has contact.
Definition of Prohibited Steps Order (PSO) and key cases:
a person from taking a specific step in relation to a child without court consent. (e.g., removal from UK, change of school/name).
Key cases:
Re W (A Child) (Illegitimate Child: Change of Surname) [1999] (often cited as Re W, Re A, Re B (Change of Name)): Guidelines for change of name applications; child’s welfare paramount, not parental wishes alone.
