Children Act Matters
Anyone who does not fall within a relevant exemption and wishes to begin court proceedings in relation to a dispute regarding a child must first attend a Mediation Information and Assessment Meeting (MIAM). The purpose of this is for a mediator to provide information regarding the mediation process and to assess whether the case is suitable for mediation to be attempted. Once a MIAM has been attended it is possible for proceedings to be issued, it is not compulsory to actually proceed with mediation following the MIAM.
Upon hearing an application the Court has the power to make a number of Orders in relation to children. The most common Orders made are referred to as “Section 8” Orders. There are three types of order that can be made under Section 8 of the Children Act 1989, these are:
A Child Arrangements Order - This is an order which will regulate arrangements relating to:
With whom a child is to live, spend time or otherwise have contact with; and
When a child is to live, spend time or otherwise have contact with any person.
A Child Arrangements Order, therefore, deals with both issues of with whom a child is to live and with whom a child is to have contact. The court can order that a child lives with one parent and has contact with the other or can order that there be shared residence, which is where the child spends time living with each parent.
In relation to contact, the level of contact which can be ordered will vary. It is possible for the court to order indirect contact (letters, cards, emails etc) or one of three different types of face to face direct contact:
Contact takes place in a supervised contact centre with a supervisor present at all times. The supervisor will supervise only one family at a time.
Supported contact: Contact takes place in a contact centre, however, there will be a number of families having contact at the same time and support workers will be present to observe all those having contact. There are centres locally in Bexleyheath, Abbeywood, Gravesend, Istead Rise and Bromley; however, there is often a waiting list to use these centres.
Unsupervised contact: Contact will take place outside of a contact centre and there will be no supervision. The duration will be set by the court and can include overnight stays.
A Prohibited Steps Order
This is an Order which prevents someone from taking a specific course of action in respect of a child. For example, they can be used to prevent the removal of a child from the jurisdiction of England and Wales. This Order is usually obtained where there have been threats made to remove a child from the care and control of the parent without consent.
A Specific Issue Order – This is an Order where the Court is asked to determine a specific question concerning a child. This can include issues such a changing a child’s surname or what school the child is to attend.
It is possible for non-parents to make an application to the court for a section 8 Order. However, they will first need the permission of the court to apply.
Factors the court will consider:
When deciding whether and what order to make the child’s welfare will be the court’s paramount consideration, however, the court will have regard to a number of factors known as the welfare checklist contained in s.1 (3) Children Act 1989:
The ascertainable wishes and feelings of the child (considered in light of their age and understanding)
Physical, emotional and educational needs
Likely effect on the child of any change in circumstances
The child’s age, sex, background and any other characteristics the court considers relevant
Any harm the child has suffered or is at risk of suffering
How capable each of the child’s parents and any other relevant person is of meeting the child’s needs
The range of powers available to the court under the Act
Attend a MIAM (unless a relevant exemption applies). The mediator will sign a form confirming that a MIAM has been attended and this will allow an application to be prepared and sent to court. The court will list the matter for a First Hearing Dispute Resolution Appointment (FHDRA) and CAFCASS (an independent body) will be sent the documents and will carry out initial safeguarding checks in order to highlight whether there are any issues which may pose a risk of harm to the child.
The parties and a CAFCASS Officer will attend the FHDRA. The CAFCASS Officer will speak to both parties in an attempt to resolve the issues between them. The court will, therefore, consider what the issues are and what options are available to resolve them. Other matters that will be considered include the need for reports (CAFCASS can be directed to prepare a report making their recommendations as to the type of Orders that should be made), whether expert evidence is required, the wishes and feelings of the children and filing of statements. The court will also list the matter for a Dispute Resolution Appointment.
At the Dispute Resolution Appointment, any reports and evidence will be considered and the court will attempt to resolve or narrow the issues that remain outstanding between the parties. If an agreement is not reached, the court will list the matter for a Final Hearing.
At a Final Hearing, the Judge will decide on the Orders to be made. It is possible for the Court to make interim orders at any stage of the procedure.
Once an s.8 Order is made it will usually last until the child reaches the age of 16. If a Child Arrangements Order is made providing for a parent to have contact with the child it will automatically end if the parties live together for a continuous period of more than 6 months.
The timescale in obtaining Children Act Orders can differ significantly from one case to the next. The Court is required to deal with the case without delay if possible. If a case progresses to a Final Hearing this could take approximately 6 – 12 months. However, there is no way of predicting how long your specific case will take to resolve.