The Court has the power to make a number of Orders which can relate to dependent children, where a dispute arises between the parents. The most common Orders made are referred to as "Section 8" Orders. There are 4 types of Order which can be made under Section 8 of the Children Act 1989 these are;
- A Contact Order – This is an Order which provides for a child to have contact with an absent parent. The level of contact which can be ordered to take place can vary. There may be an Order for direct contact (face to face) or indirect contact (letters, cards, e-mails).
Direct contact can take place on either a supervised, supported or unsupervised basis.
Supervised Contact - This contact takes place on a "one on one" basis with a supervisor being present throughout the duration of contact. This is usually conducted in specialist centres and a fee is generally payable
Supported Contact - This contact takes place in a Contact Centre. The Centre accommodates a number of families having contact at the same time. Support workers are present during the contact. Locally centres are situated in Bexleyheath, Abbeywood, Gravesend, Istead Rise and Bromley. There is often a waiting list to use the centres which are generally open alternate Saturdays for 2/3 hours
Unsupervised Contact – This contact will take place unsupervised. The contact will take place for a duration of time decided by the Court. This can include overnight staying contact
Indirect Contact - This would involve the absent parent sending cards/letters/photographs to the child at a level to be determined by the Court.
- A Residence Order – This is an Order which confirms with whom a child is to live. This will generally be made in favour of one parent, with the other obtaining a Contact Order if necessary. The Court may consider making a Shared Residence Order in certain circumstances. This is where the child spends some time living with each parent.
- A Prohibited Steps Order – This is an Order which prevents a parent taking a specific course of action in respect of a child. An example of a Prohibited Steps Order is an Order preventing the removal of a child by one parent from the jurisdiction of England and Wales. This Order may be required where threats have been made by one parent to remove a child from the care of the other parent without consent.
- A Specific Issue Order– This is an Order whereby the Court will have been asked to decide on a specific issue concerning a child. This may for example include a request for an Order for the change of a child’s surname or an Order that a child attend a specific school.
NB. It is possible for a non-parent to make an Application for a Children Act Order however leave of the Court (permission) would first be required to make the Application
Factors which the Court will take into account when considering whether to make an Order
When deciding whether to make an Order the Court will have regard in particular to the following, pursuant to Section 1 (3) of the Children Act 1989;
- the ascertainable wishes and feelings of the child concerned (considered in light of age and understanding)
- physical, emotional and educational needs
- the likely effect on the child of any change in circumstances
- the child’s age, sex, background and any characteristics of theirs which the Court consider relevant
- any harm which the child has suffered or is at risk of suffering
- how capable each of the parents, and any other person in relation to whom the Court considers the question is relevant, is of meeting the child’s needs
- the range of powers available to the Court under this Act in the proceedings in question
The above criteria is often referred to as the "Welfare Checklist".
Procedure on making an Application for a Children Act Order
- When an Application is made to the Court the matter will be listed initially for a Directions Appointment. This is a Hearing when the Judge will consider what Directions need to be given for the case to move forward. This will generally be for the filing of Statements and possibly a CAFCASS Officers Report. (This is a Report which is prepared by a Children and Family Reporter, making their recommendations to the Court as to the type of Orders which should be made and how these should in practice work). If an agreement can be reached at the Directions Hearing then it is possible for the Court to make an Order, endorsed with the consent of both parties. If this is the case, then a review Hearing (especially in relation to a Contact Order) may be listed in a few months time. At this review Hearing both parties will be expected to attend Court and confirm to the Judge their position and what future Orders they seek.
- If allegations of domestic violence are made by either party then the Court are likely to list the case for a Fact Finding Hearing. This is a Hearing which will enable the Court to hear evidence in respect of the allegations of domestic violence and determine what violence has occurred within the relationship and how this impacts upon any orders they are being asked to make concerning the children. The Court will then consider further Directions which may be necessary as a result of the findings made.
- Ultimately, if you are unable to agree between yourselves the level of contact which should take place then the matter will be listed for a final Hearing, at which time the Judge will make a decision as to the level of contact which should take place. The above Directions will however need to be complied with in the meantime, to enable the case to progress to a final hearing. It is possible to ask the Court to make an Interim Order (an Order in the meantime).
The timescale in obtaining Children Act Orders can differ significantly from one case to the next. If a case progresses all the way to a Final Hearing then this may involve a period of 6 – 12 months. There is however no way of predicting how long your specific case will take to resolve.
