Private Children Flashcards
Legislation and FPR
Law:
- Children Act 1989 CA1989 = main piece of legislation
- children and Families Act 2014 CFA 2014
- Child Abduction Act 1984
Procedure:
PD12B
guiding Principles of CA 1989
- The welfare Principle - s.1(1):
“the child’s Welfare shall be the court’s paramount consideration”
- Paramount means overriding/more important than anything. - No delay – s.1(2):
- “any delay… is likely to prejudice the welfare of the child.” - No order – s.1(5):
- “[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.” - Presumption of parental involvement – s.1(2A)
- Presumption that a child’s welfare is best served by having both parents involved in his/her life.
What is Parental responsibility?
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”.
What does this mean?
Responsibility for all aspects of caring for the child, including making decisions in relation to the child’s life (both day-to-day decisions and more significant decisions).
Who has PR Parental Responsibility?
The following automatically have PR i.e. from the moment the child is born:
* Mother: s.2(1) and s.2(2)(a)
* Father only if married to mother at time of child’s
birth: s2(1)
* Womanwhoismarriedorinacivilpartnership with another woman at the time that woman is artificially inseminated (unless she did not consent to the woman having that treatment): s.2(1A)
How an unmarried father can acquire PR?
- Named on birth certificate (if child born after 1.12.2003) (s.4(1)(a) CA)
- PR agreement with mother (s.4(1)(b) CA)
- Court order (s.4(1)(c) CA)
- Father subsequently marries mother (s.2(3) CA)
- Father appointed as child’s guardian (s.5(6) CA)
- Child arrangements order:
– CAO providing that child is to live with the father – court must give father PR if he does not already have it (s.12(1) CA)
– CAO providing that child is to have contact with the father – court must consider giving father PR if he does not already have it (s.12(1A) CA)
Factors considered in relation to a Father application for PR
Re H (Minors) (Local Authority: Parental Rights) [1991]:
* The degree of commitment the father has shown towards the child.
* The degree of attachment existing between the father and the child.
* The reasons for the father’s application. [the ‘CAR’ test]
s. 8 Orders
- Child arrangements order (CAO)
- Specific issue order
- Prohibited steps order
Child Arrangement Order
Order determining the living and / or contact arrangements for a child. Two types:
- “Lives with” CAO – an order stating that a child should live with a party / parties.
- “Spends time with” CAO – an order stating that a child should spend time with a party / parties.
Specific Issue Order
Order determining a single issue dispute e.g.:
* Schooling
* Religion
* Medical treatment
* Child’s surname:
- s.13(1)(a) applies where there is a lives with
CAO in place.
- Re PC [1997] applies where there is no lives with CAO in place.
- Dawson v Wearmouth (1999): must be “evidence that [a change in surname] would lead to an improvement from the point of view of the welfare of the child.”
- Re W, Re A and Re B [1999]
Prohibited Steps Order
Order preventing a party from taking a particular step in relation to a child e.g.:
- Changing their name/surname
- Taking the child out of the jurisdiction
s. 1(3): the Welfare/ Statutory Checklist
- s.1(3)(a) Child’s wishes and feelings (in the light of their age and understanding):
- Generally, the older the child, the greater the weight afforded to their wishes and feelings.
- Gillick competence
- s.1(3)(b) Child’s physical, emotional and
educational needs:
- Physical: Systems of care?
- Emotional: Which outcome will best meet the
child’s emotional needs? - Educational: Any likely disruption to child’s education?
s.1(3)(c) Likely effect on the child of a change in circumstances: - Are the current arrangements meeting the child’s needs?
- How would a change in circumstances affect the child?
- s.1(3)(d) Child’s age, sex, background and any relevant characteristics.
- s.1(3)(e) Any harm the child has suffered or is at risk of suffering:
- Includes physical, psychological and emotional harm.
- s.1(3)(f) Ability to meet child’s needs:
- What outcome will best serve the child’s needs?
- s.1(3)(g) Range of powers available to the court:
- Court can make a different order to that which has been applied for.
Procedure in s.8 Proceedings
- MIAM attendance
* FPR 3.6 / 12BPD5.3 Applicant is required to attend a MIAM unless
a MIAM exemption applies. Respondent is also expected to attend.
* FPR 3.8 Circumstances where MIAM exemption applies. - Application on Form C100 (and C1A, if applicable) (12BPD 8)
* Court issues application.
* 12BPD 8.8 Court serves issued application (C100 and C1A if
applicable), blank acknowledgement Form C7, blank Form C1A and
Notice of Hearing on respondent.
* 12BPD 8.9 Court sends C100 (and C1A, if applicable) to CAFCASS.
* 12BPD 8.11 R has 14 days from receipt to file acknowledgement Form
C7 (and a completed C1A, if applicable). - Allocation / Gatekeeping (12BPD 9)
- Safeguarding checks (12BPD 13)
* 12BPD 13.1 where application is for CAO, FCA (CAFCASS) to carry out
safeguarding checks.
* 12BPD 13.3 lists types of checks to be carried out.
* 12BPD 13.7 CAFCASS to set out outcome of checks in a safeguarding letter
to the court at least 3 working days before FHDRA. - FHDRA (12BPD 14)
* 12BPD 14.1 to take place within 4 – 6 weeks of issue of application.
* 12BPD 14.4 all parties to attend.
* 12BPD 14.11 sets out purpose of FHDRA.
FHDRA Directions
* Section 7 report (usually only in CAO applications).
* Expert evidence (NB restrictive rules – s.13(6) CFA 2014).
* Witness statements – usually only parties.
* Interim arrangements concerning child.
* Listing further hearings ([fact finding] / DRA).
- [Fact finding hearing] (12BPD 20)
* Only in some cases.
* Where court considers it necessary to determine truth regarding
allegations of domestic abuse before determining main application. - Dispute Resolution Appointment (12BPD 19)
* Parties encouraged to resolve some or all of the issues.
* If they cannot resolve matters, court makes further directions. - Final Hearing
Child abduction Within the UK: the Law
- If a parent or carer wishes to take a child to live in a different part of the UK, the parent wishing to relocate requires the consent of the other party or permission from the court.
- The court will apply the s.1(3) welfare checklist when determining the application
- s.1(1) Child Abduction Act 1984: If a person connected with a child removes the child from the UK without obtaining the consent of those with PR or leave of the court = criminal offence punishable by fine/imprisonment.
- Exception: s.1(4) Child Abduction Act 1984 / s.13(2) Children Act 1989: enables a party with a “lives with” CAO in their favour to take the child out of the jurisdiction for a period of < 1 month without obtaining consent/leave of the court
How to prevent Child abduction from the UK
- Prohibited steps order (s.8 CA 1989)
- Tipstaff orders:
– Location order: against third parties to try to ascertain
the child’s whereabouts.
– Collection order: where the child’s whereabouts is
known but respondent is refusing to return the child.
– Passport order: enables the tipstaff to seize the
passport and travel documents of the child and relevant adults from the respondent. - Portalert(12FPD):
- Ask the police to implement where the threat of removal is “real and imminent”.
IMPORTANT!! Leave to remove cases
S v G [2015]:
* Child’s welfare is the court’s paramount consideration.
* In determining the child’s best interests, the court should have
regard to the statutory checklist at s.1(3).
* The court should consider the prevailing child care arrangements – what would the parents intend the
arrangements to be if it were not for the question of relocation?
* The court must also scrutinise:
– The impact of relocation on the ‘left behind’ parent vs the impact on the applicant if the court refuses the application.
– The applicant’s motives – are they child focussed?
– The applicants proposals – what will the child’s new life look
like if the applicant succeeds; what are the applicant’s proposals re contact with the ‘left behind’ parent?
